State of Louisiana v. Daniel Heath Kight

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-974

STATE OF LOUISIANA

VERSUS

DANIEL HEATH KIGHT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 27166-14
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W.
Perry, Judges.

AFFIRMED.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Daniel Heath Kight

John F. DeRosier
District Attorney
Charles Robinson
Assistant District Attorney
Shelley A. DeVille
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

PERRY, Judge.

Daniel Heath Kight (“Defendant”) appeals his mandatory sentence of life

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

second degree murder of David Scasino (“Scasino”). For reasons which follow, we

affirm Defendant’s sentence. 1

FACTS AND PROCEDURE

Scasino and Defendant, who were friends, had trailer homes next to each other

in Vinton, Louisiana. On the morning of September 22, 2014, Scasino was found

dead in his trailer home by Mark Kidder, a neighbor and friend. The Calcasieu

Parish Coroner’s report showed Scasino suffered multiple stab wounds and cuts to

the head, neck, abdomen, back, buttocks, and both upper and lower extremities; his

injuries led to the severing of both carotid arteries, a hole in his lung, and four holes

in his liver. The Coroner also found Scasino’s chest was cut open from the neck to

his genitalia, and his testicles were removed and placed next to his body; these

injuries were inflicted post-mortem.

The Vinton police arrested Defendant, and a grand jury indicted him with the

second degree murder of Scasino. Between Defendant’s arrest and his bench trial,

on February 14, 2018, multiple sanity and competency panels examined Defendant;

all concluded he was competent to proceed to trial and that he was sane at the time

of the offense. Defendant entered a plea of not guilty and not guilty by reason of

insanity and waived his right to a jury trial. After a four-day bench trial in which

two psychiatrists and one psychologist, the former two for the State and the latter for

Defendant, testified about Defendant’s mental health history and the status of his

1
Defendant has not appealed the trial court’s determination of his guilt or the rejection of
his plea of not guilty by reason of insanity.

sanity at the time of the murder, the trial judge found Defendant guilty as charged

and rejected his plea of not guilty by reason of insanity.

On March 26, 2018, the trial judge, applying the mandatory sentencing

provisions of La.R.S. 14:30.1(B), imposed a sentence of life imprisonment without

benefit of parole, probation, or suspension of sentence.2 The sentencing colloquy is

quoted below:

[I]t could be very problematic for Daniel to be in [the] regular
population at Angola or . . . probably a lot of other state facilities. Based
on what I have heard up to this point, and based on the conviction I am
sentencing him to life in prison without benefit of probation, parole or
suspension of sentence . . . . However, I want it emphatically stated in
the sentence that I am recommending that the state make every effort
to place him in an appropriate facility based on his limitations and his
medical condition. And I’ll do whatever I can to make that happen.

Defendant now raises two assignments of error, namely: (1) The imposition

of the mandatory life sentence without benefit of parole, probation, or suspension of

sentence violates the Eighth Amendment of the U.S. Constitution and La.Const. art.

1, § 20, as it is nothing more than cruel and unusual punishment and, thus, excessive;

and (2) Defendant received assistance of counsel below that guaranteed by the Sixth

Amendment during the sentencing phase, as counsel failed in three instances: (a)

counsel failed to argue and present evidence to establish that Defendant was

“exceptional” and deserving of a downward departure from the mandatory life

2
Although the sentencing judge mentioned that it would be difficult if Defendant were
placed in the regular population at Angola, he did not mention hard labor or the Department of
Corrections when he imposed Defendant’s sentence without benefit of probation, parole or
suspension of sentence. Notwithstanding, the court minutes indicate Defendant’s sentence was to
be served in the Louisiana Department of Corrections, necessarily at hard labor.

If a discrepancy exists between the commitment and the transcript, the transcript prevails.
State v. Lynch, 441 So.2d 732 (La.1983). Louisiana Code of Criminal Procedure Article 879
requires a court to impose a determinate sentence. If there were some discretion allowed by the
applicable sentencing statute, the failure to indicate whether the sentence was to be served at “hard
labor” would be an impermissible indeterminate sentence. However, because Defendant herein
was sentenced pursuant to La.R.S. 14:30.1 which requires a mandatory sentence of life
imprisonment at hard labor, Defendant’s sentence is determinate and the failure to state such is
harmless error. See, State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115.

2

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

due to the mitigating factors present in this case; (b) counsel failed to object to the

excessiveness of the life sentence; and (c) counsel failed to file a motion to

reconsider the sentence to preserve for appellate review the issue of whether

Defendant was exceptional and deserving of a downward departure from the

statutorily mandated sentence.

DISCUSSION

Defendant’s assignments of error are interrelated. Therefore, we will address

them together.

Defendant first contends that his statutorily mandated life sentence is

excessive because of his alleged diminished culpability. Accordingly, he argues he

should receive a downward departure from the single sentence the legislature

mandated in La.R.S. 14:30.1(B). He further notes he would be precluded from

advancing this argument because trial counsel failed to argue and present evidence

at his sentencing hearing that he was deserving of a downward departure from the

mandatory sentence, and he failed to object to his sentence and chose not to file a

motion to reconsider sentence under La.Code Crim.P. art. 881.1. Thus, he argues

these failures evidence trial counsel provided ineffective assistance during the

sentencing phase, and this court should assess that claim.

In State v. Reed, 00-1537, pp. 21-22 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261,

1274-75, writ denied, 02-1313 (La. 4/25/03), 842 So.2d 391, a case that addressed

similar claims of ineffective assistance of counsel, we stated:

Defendant alleges that his life sentence, although statutorily
mandated, is excessive under the circumstances of this case.
Defendant argues in the alternative that there was no strategic reason
for defense counsel to have ignored the requirements of La.Code
Crim.P. art. 881.1; he, therefore, received ineffective assistance of
counsel.
3

As noted, Defendant did not make or file a motion to
reconsider his sentence. Pursuant to Article 881.1, Defendant had
thirty days from the date of sentencing to make or file a motion to
reconsider. Absent a timely motion, this court is precluded from a
review of the sentence on appeal. State v. Joubert, 97–1093 (La.App.
3 Cir. 2/4/98)[,] 705 So.2d 1295, writ denied, 98–1525
(La.10/30/98)[,] 723 So.2d 973.

However, inasmuch as Defendant raises allegations of
ineffective assistance of counsel for failure to make or file a motion
to reconsider his sentence, and the record before us enables us to do
so, we will address this issue.

....

This court held in State v. Judge, 99–1109 (La.App. 3 Cir.
3/1/00)[,] 758 So.2d 313, [writ denied, 01-1094 (La. 3/28/02), 812
So.2d 641,] that there could be a basis for an ineffective assistance
claim if a defendant can show a reasonable probability that, had counsel
filed or made a motion to reconsider the sentence, the sentence would
have been different.

The record before us is complete and allows us, as we did in Reed, to address

the issue of trial counsel’s ineffective assistance at the sentencing hearing. To

prevail on his ineffective assistance of counsel claim, Defendant must show from

the outset that his trial counsel’s deficiency prejudiced him. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Accordingly, in the present case,

unless Defendant can show a downward departure from the mandatory life sentence

for second degree murder was warranted, he cannot meet Strickland’s prejudice test.

It is well-accepted that a trial court is required to impose sentences the

legislature prescribed unless the sentences are unconstitutional. State v. Dorthey,

623 So.2d 1276 (La.1993). Under La.R.S. 14:30.1, second degree murder has only

one possible constitutional sentence—mandatory life imprisonment without the

benefit of probation, parole, or suspension of sentence.

In State v. Watson, 15-392, pp. 14-15 (La. App. 3 Cir. 10/7/15), 175 So.3d

1192, 1202, writ denied, 15-2046 (La. 11/7/16), 208 So.3d 897, this court stated:

4

Louisiana Revised Statutes 14:30.1 provides that the punishment for
second degree murder is life imprisonment without the benefit of parole,
probation, or suspension of sentence. Quoting State v. Williams, 445
So.2d 1264, 1269 (La.App. 3 Cir.), writ denied, 449 So.2d 1346
(La.1984), the State in the instant case noted that “[i]t is ‘an exercise in
futility’ for a trial court to consider sentencing factors when imposing
a mandatory sentence when the trial court [has] no discretion in
sentencing a defendant.” Moreover, while discussing the possibility of
a downward departure from a mandatory life sentence for second
degree murder, in State v. Runyon, 05–36, p. 33 (La.App. 3 Cir.
11/2/05), 916 So.2d 407, 429–30, writ denied, 06–1348 (La. 9/1/06),
936 So.2d 207, and writ denied, 06–667 (La.11/17/06), 942 So.2d 526,
this court noted:

Citing State v. Dorthey, 623 So.2d 1276 (La.1993), and
State v. Sepulvado, 367 So.2d 762 (La.1979), [defendant]
contends that his mandatory life sentence for a second-
degree murder conviction is too severe and that he should
either be resentenced or a more appropriate sentence should
be imposed by this court.

In State v. Paddio, 02–722, pp. 16–17 (La.App. 3 Cir.
12/11/02), 832 So.2d 1120, 1131, writ denied, 03–402 (La.
2/13/04), 867 So.2d 682 (citations omitted), this court
discussed the imposition of life sentences under La.R.S.
14:30.1, stating:

[A] court may depart from a minimum sentence only
if it finds that there is clear and convincing evidence
that rebuts the presumption of constitutionality. To
rebut the presumption, a defendant must show, by
clear and convincing evidence, that, “because of
unusual circumstances this defendant is a victim of
the legislature’s failure to assign sentences that are
meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the
circumstances of the case.”

Defendant . . . set forth no mitigating reasons why his
sentence is cruel, unusual, or too severe. He makes no
attempt to set forth unusual circumstances that rebut the
presumption of constitutionality; thus[,] he has failed to
meet his burden of proof on this point. The gravity of the
offense merits the punishment prescribed by the legislature,
and Defendant . . . makes no showing to the contrary.

See also State v. Ross, 03–564 (La.App. 3 Cir. 12/17/03), 861 So.2d
888, writ denied, 04–376 (La. 6/25/04), 876 So.2d 829.

5

Accordingly, it is incumbent upon Defendant to raise the
question of whether the mandatory life sentence for the offense of
second degree murder was inappropriate in his case. This, he did not do.
There was no discussion at the sentencing hearing regarding such a
concern, nor did Defendant raise it in a motion to reconsider the
sentence.

In the present case, Defendant argues that trial counsel was required to

explicitly argue for a downward departure at the sentencing hearing, see Watson,

175 So.3d at 1202, and that constituted the basis for his ineffective-assistance claim.

There is no reason for a court deciding an ineffective assistance claim to address

such component, if the defendant makes an insufficient showing of prejudice.

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. “The object of an ineffectiveness

claim is not to grade counsel’s performance. If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course

should be followed.” Id. Commenting on the assessment of prejudice from trial

counsel’s errors, the Strickland court noted:

[A] court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual findings
that were affected will have been affected in different ways. Some
errors will have had a pervasive effect on the inferences to be drawn
from the evidence, altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support. Taking
the unaffected findings as a given[ ] and taking due account of the effect
of the errors on the remaining findings, a court making the prejudice
inquiry must ask if the defendant has met the burden of showing that
the decision reached would reasonably likely have been different absent
the errors.

Id., 466 U.S. at 695–96, 104 S.Ct. at 2069.

Defendant, who was thirty-four years of age when he murdered Scasino,

presents a twofold argument to justify a downward departure from the mandated life

sentence—his mental health and his mental functioning. To get a better perspective

6

on Defendant’s argument and assess the determination of prejudice, a review of the

record is necessary to provide a picture of his mental health.

In that regard, it is unrefuted that Defendant showed no delusional episodes

until he was involved in a 1998 car accident that profoundly affected him. At that

time, he drove his automobile at an excessive speed, struck a tree, and was ejected

through the rear window of the vehicle. He remained in a coma for approximately

forty-five days; at that time his brain was full of fluid, and he almost severed his

neck. After he regained consciousness, he was moved to a rehabilitation center,

where he was still unable to sit up and eat. In time, he was able to sit in a wheelchair,

and he eventually progressed to the point where he could ambulate with the help of

canes and perform daily tasks. His parents, Cynthia Pierce and James Kight, testified

Defendant was totally different after he suffered this traumatic brain injury.

Eventually, Defendant was able to live alone, manage his own finances, and take

care of himself.

Defendant’s parents and various relatives described numerous delusions that

he had commencing after his accident and continuing up to the time of Scasino’s

murder, almost sixteen years later. Among Defendant’s delusions were the

following: his assertion that he told the President of the United States where Saddam

Hussain hid; he worked for the CIA and President, and they were going to get him

out of jail; he worked for Cheryl Tiegs, and he was good friends with Oprah, Dr.

Phil, and Reba McIntire; and he and his father could fly faster than the speed of light.

However, of the various delusions, the one that would play the most active

part in Scasino’s murder was Defendant’s fixation on ninjas. According to

Defendant, it was because he had a ninja that he was able to do the things outlined

just above. He also feared that there existed “others” who would enter his house and

7

talk to him. In one conversation with his mother, Defendant explained that he lined

his apartment, and then later his trailer, with aluminum foil because these “other

intruders” could take his camper and twist it back like a can opener. In another

conversation with his father, he explained his foil-covered abode as being necessary

because the ninjas were after him.

Defendant and Scasino were neighbors and friends who lived next to each

other. On more than one occasion, without any factual basis, Defendant would call

Scasino a child molester. On the day before the killing, a Vinton 9-1-1 operator

received a telephone call from someone who identified himself as Daniel Kight. The

caller reported that he heard noises coming from Scasino’s trailer and asked that a

Calcasieu Parish deputy be sent to remove a child from Scasino’s trailer; the caller

was concerned that Scasino was doing something to the little girl. In the course of

the 9-1-1 call, the caller commented that if the police wanted to see the caller choke

the life out of Scasino and rip his nuts off, they could ignore the call.

Randall Ravia (“Detective Ravia”), a detective with the Calcasieu Parish

Sheriff’s Office, responded to the 9-1-1 call. Detective Ravia testified he spoke with

Defendant and Scasino, looked into Scasino’s trailer, and found no children or

evidence that children were present. Scasino told Detective Ravia that Defendant

would often smoke weed, get mad at him, and all would be fine the next day.

Detective Ravia further testified that he spoke with Defendant and told him that he

found no children inside Scasino’s trailer. Although Detective Ravia could not

remember Defendant’s mental state, he recalled that Defendant told him he had

smoked marijuana before the police arrived. When his call sheet for services was

shown to him at Defendant’s trial, Detective Ravia testified that the code shown on

the sheet, 103M, meant “possible mental subject.”

8

Dr. Jerry Whiteman (“Dr. Whiteman”), an expert in psychology who testified

as a defense witness, related a conversation in which Defendant described the killing

to him. Defendant told Dr. Whiteman that he thought he was defending a little girl

and explained that he cut Scasino from his neck to his genitalia to get the ninja out

that was hiding inside him.

Two psychiatrists, Dr. Patrick Hayes and Dr. James Anderson, examined

Defendant at length prior to trial, testified at various pre-trial hearings regarding

Defendant’s mental health, and testified again at Defendant’s trial; all in all, during

the course of more than three and one-half years, these two psychiatrists participated

in four separate hearings regarding Defendant’s mental state. 3 Although both

psychiatrists concluded Defendant knew right from wrong at the time of the murder,

they both acknowledged Defendant’s failure to take his prescriptive medication,

coupled with his use of illegal drugs, exacerbated the delusions from which

Defendant suffered. In fact, Dr. Hayes opined that Defendant would do fine if he

properly took his prescriptive medications and if he lived in a controlled

environment.

Dr. Hayes also addressed Defendant’s intelligence; after reviewing various

Wechsler test results, he noted Defendant’s IQ was somewhere between seventy-

five and eighty-two, a low average score. In addition, Dr. Whiteman, Defendant’s

expert, concluded that Defendant was delusional at the time of the murder but opined

that Defendant’s long-time substance abuse greatly contributed to his delusions and

3
Defendant’s mental status was the subject of pre-trial hearings before Judge Wyatt on
December 14, 2014, December 16, 2015, and October 12, 2016. At the conclusion of each of those
hearings, the trial court agreed with the psychiatric experts that Defendant was sane at the time of
the offense and competent to stand trial. Defendant’s four-day bench trial which began on
February 14, 2018, also focused at great length on his mental health. After hearing from
psychiatrists, psychologists, and lay witnesses, many of whom were related to him, the trial court
rejected Defendant’s plea of not guilty by reason of insanity.
9

paranoia; he, too, administered a Wechsler test and determined Defendant’s full-

scale IQ was seventy-five.

Defendant’s arguments are similar to the argument presented in State v. Little,

50,776 (La.App. 2 Cir. 8/10/16), 200 So.3d 400, writ denied, 16-1664 (La. 6/16/17),

219 So.3d 341, in which a defendant, who was twenty-two years of age, pled guilty

to the second degree murder of a convenience store clerk during a robbery and

sought a downward departure from the mandatory life sentence without benefits he

received under La.R.S. 14:30.1.

In Little, 200 So.3d at 402, the defendant argued that he was only twenty-two

years of age, a first felony offender, and mentally retarded, as his IQ “fell between

42 and 55 and allegedly equated to a mental age of nine years old.” The second

circuit, noted that “[a]lthough courts have the power to declare a mandatory

minimum sentence excessive[,]” that “power should be exercised only in rare cases

and only when the court is firmly convinced that the minimum sentence is excessive.”

Id. at 403. It further stated, “the defendant must clearly and convincingly show that

he is ‘exceptional’ by proving that the imposed sentence is not meaningfully tailored

to his culpability, the gravity of the offense, and the circumstances of the case.” Id.

at 404. Ultimately, the second circuit denied the defendant’s claim that he was

entitled to a downward departure.

Likewise, this court addressed a similar claim in State v. Monceaux, 17-1052

(La.App. 3 Cir. 5/9/18) (unpublished opinion). In Monceaux, the defendant, who

was nineteen years of age, claimed his limited education and intellectual functioning

rendered him the equivalent of a juvenile; thus, he argued, he should not receive a

mandatory life sentence without benefits for the aggravated rape of a boy who was

seven years of age. As in Little, the defendant argued his youth and diminished

10

mental capacity should entitle him to be treated like a juvenile for sentencing

purposes. Finding the defendant’s actions exhibited deliberate thought, this court

found the defendant did not prove he deserved a downward departure from the

mandatory sentence he received and, therefore, he failed to prove he suffered

prejudice from trial counsel’s failure to file a motion to reconsider sentence.

Finally, in State v. Thomas, 50,898 (La.App. 2 Cir. 11/16/16), 209 So.3d 234,

the defendant argued that he should have received a downward departure from life

imprisonment for aggravated rape. In that case, the defendant premised his argument,

in part, on the medical findings that he was bipolar, schizophrenic, and off his

psychiatric medication. Finding the defendant’s mandatory minimum sentence

justified, the second circuit viewed the brutality of the crime and the severity of the

wounds he inflicted upon the victim.

In the present case, a day after telling a 9-1-1 dispatcher that he would kill

Scasino and rip his genitalia off, Defendant stabbed his victim more than a dozen

times, cut open his chest from the neck to the genitalia post-mortem, and gelded him.

Considering the totality of the evidence presented to the trial court, including the

four comprehensive hearings on Defendant’s mental status, the details his family

provided, and the brutality of Defendant’s crime, we find Defendant did not prove

this is one of those rare cases which deserves a downward departure from the

mandatory sentence he received. Therefore, he fails to prove he suffered prejudice

from trial counsel’s failure to argue and present evidence at sentencing to establish

a downward departure, to object to the sentence as excessive, and to file a motion to

reconsider sentence. Thus, Defendant’s claim of ineffective assistance of counsel

likewise fails. Accordingly, Defendant’s sentence is affirmed.

AFFIRMED.

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