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State v. Jones9/24/2004
Disposition: Trial Court's Judgment, Finding of Guilt, and Sentence Stand.
This court has considered the appeal of defendant-appellant, Daniel Jones, en banc, and all twelve of the judges of this court have participated. Louisiana Constitution Art. V, s 8B requires that " majority of the judges sitting in a case must concur to render judgment." Since six of the twelve judges agree to the affirmance of the conviction while six would reverse, there is no majority concurring to render judgment in this case. Accordingly, the judgment of conviction and the sentence stand.
CONVICTION AND SENTENCE STAND.
KUHN, J., concurring in part.
Defendant, Daniel J. Jones, was charged by bill of information with one count of fourth offense driving while intoxicated (hereinafter "DWI-fourth offense"), in violation of La. R.S. 14:98 . The offense was alleged to have occurred on June 29, 2002. Defendant entered a plea of not guilty. After a trial by a jury, defendant was found guilty as charged and was sentenced to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. In addition the trial court imposed a fine of $5,000.00 and ordered defendant's vehicle forfeited. The trial court denied defendant's motion to reconsider sentence.
Defendant appeals, urging the following assignments of error warrant reversal of his conviction and sentence:
1. There was insufficient evidence presented at trial from which a jury could have found defendant guilty as charged.
2. The trial court erred in refusing to sentence defendant under the 2001 Acts, No. 1163 amendments to La. R.S. 14:98.
Finding no merit in these assignments of error, I would affirm defendant's conviction and sentence.
FACTS
At about 11:15 P.M. on June 29, 2002, Pearl River Police Department Deputy Corey Crow was dispatched to assist a motorist on State Highway 41. On her way to work, police dispatcher Barbara Crawford had observed a white male slumped over the steering wheel of a silver Kia that was pulled off on the shoulder of the highway, just barely off the road. No one else was in or around the car and there were no other vehicles in the vicinity. She thought the driver might be having a medical emergency. When she arrived at the station, only about one and one half miles away, she asked Deputy Crow and reserve Officer Edgar Legman to investigate. Officer Legman left immediately to investigate.
When Officer Legman arrived on the scene, just moments later, defendant Daniel J. Jones was getting out of the driver's side of the Kia and staggering toward a sports utility vehicle (SUV) parked nearby. At this point, the Kia was in a different location, about twenty-five feet off the roadway, stuck in mud. Defendant tried to get into the passenger side of the SUV, but Officer Legman advised him that he could not leave. The driver of the SUV then drove off, leaving defendant on the shoulder of the road. Defendant told Officer Legman that he was trying to get his vehicle out of a ditch and that his girlfriend had been driving.When Deputy Crow arrived to take over the investigation shortly thereafter, defendant was sitting in the driver's seat of the Kia, with the driver's side door open. Defendant appeared intoxicated and Deputy Crow read him his Miranda rights. When asked if he had been drinking, defendant admitted that he had a couple of beers earlier, had been at a friend's house swimming, and was headed home. Defendant had a Kia uniform shirt on and indicated that he was purchasing the Kia. At no time did he suggest to Deputy Crow that anyone else had been driving the vehicle. Officer
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