MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
MELVIN S. HOFFMAN, Bankruptcy Judge.
Before me is the motion of the defendant Emigrant Mortgage Company, Inc. to dismiss this adversary proceeding.
Background
The plaintiff, who is the Debtor in the main bankruptcy case, refinanced his home mortgage loan with the defendant lender on December 7, 2007. In his complaint, the plaintiff alleges that this transaction violated the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws. ch. 140D (the "MCCCDA"), the state's version of the federal Truth in Lending Act, entitling him to rescission, which he purports to have effectuated on December 14, 2009. The complaint seeks to enforce the rescission, seeks related relief under the Massachusetts Consumer Protection Act, Mass. Gen. Laws. ch. 93A ("Chapter 93A") and seeks a determination that the plaintiff's obligation to the defendant is an unsecured debt.
Subject Matter Jurisdiction
The defendant seeks dismissal of this adversary proceeding for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), made applicable by Fed.R.Bankr.P. 7012. The defendant asserts that the plaintiff's claims are within neither this Court's core nor "related to" jurisdiction. The defendant argues that this is not a core proceeding because none of the causes of action asserted in the complaint are created or determined by a statutory provision of the Bankruptcy Code. The defendant's interpretation of core jurisdiction is overly restrictive.
Although all the plaintiff's causes of action are based on state law, most of them effectively serve as objections, pursuant to 11 U.S.C. (the Bankruptcy Code) §§ 502 and 506, to the defendant's proof of claim filed in the main case on April 29, 2010. The plaintiff's allegations in Counts I through III that he validly rescinded his mortgage loan have a direct impact on the validity and secured treatment of the defendant's claim and thus constitute objections pursuant to Bankruptcy Code § 502. Count IV of the complaint seeks a determination of the extent to which the defendant's claim is secured and is thus a request to determine secured status under Bankruptcy Code § 506. Thus, the relief requested in Counts I through IV of the complaint, including so much of Count II as seeks rescission, fall foursquare within the core jurisdiction of this Court over the claims allowance process under 28 U.S.C. 157(b)(2)(B) and to determine the validity, extent or priority of liens under 28 U.S.C. § 157(b)(2)(K).
The plaintiff's remaining claims, for damages under the MCCCDA and enhanced damages under Chapter 93A (Count II) and for violations of Chapter 93A (Count V) are the functional equivalent of counterclaims to the defendant's proof of claim. A proof of claim is a form of action to collect a debt, Coxson v. Commonwealth Mortgage Co. of Am., L.P. (In re Coxson), 43 F.3d 189, 194 (5th Cir. 1995). While Congress included counterclaims to proofs of claim within the definition of core proceedings in 28 U.S.C. § 157(b)(2)(C), courts have limited this definition to counterclaims that are factually and legally related to the claim being asserted in a proof of claim. See In re Marshall, 600 F.3d 1037, 1056-57 (9th Cir. 2010), cert. granted, ___ S.ct ___, 79 U.S.L.W. 3092 (U.S. Sept. 28, 2010) (No. 10-179); Bankruptcy Servs. v. Ernst Young (In re CBI Holding Co.), 529 F.3d 432, 460-61 (2d Cir. 2008). In this case, the plaintiff's MCCCDA and Chapter 93A claims arise from the same loan as, and are factually and legally related to, the loan that gives rise to the defendant's proof of claim. Accordingly, this Court has core jurisdiction over Counts II and V of the complaint. See In re Cooley, 362 B.R. 514, 519 (Bankr. N.D. Ala. 2007) (deeming debtor's adversary proceeding truth in lending claims to be counterclaims over which the bankruptcy court had core jurisdiction).
One of the questions pending before the Supreme Court in this case is whether Congress may constitutionally authorize core jurisdiction over debtors' compulsory counterclaims to proofs of claim.
Standing
The defendant also argues that the plaintiff does not have standing to pursue this adversary proceeding because in a Chapter 7 case, the Chapter 7 trustee "steps into the shoes of the debtor" for the purpose of asserting this type of action. The defendant cites Augustin v. Danvers Bank, 486 F. Supp. 2d 99, 103 (D. Mass. 2007), for the proposition that the plaintiff's prepetition truth in lending claim is an asset of the estate that must be asserted by the Trustee. While the plaintiff's claims did indeed arise prepetition, and therefore became property of his bankruptcy estate, the analysis does not end there.
If a debtor can show that a prepetition cause of action is exempt from the bankruptcy estate, then he has standing to assert that cause of action to the extent of the exemption even if the trustee has not abandoned the estate's interest in the claim.Wissman v. Pittsburgh National Bank, 942 F.2d 867, 870 (4th Cir. 1991). Of course, if the plaintiff fails to claim an exemption in the cause of action, then the entire cause of action remains property of the estate. Rowland v. Novus Financial Corp., 949 F. Supp. 1447, 1453-54 (D. Haw. 1996).
The plaintiff in the present case does not mention in his complaint whether the claims in this adversary proceeding have been declared exempt. Because in a motion to dismiss a court may take judicial notice of the "entire record in the bankruptcy case and this adversary proceeding," In re Sunshine Three Real Estate Corp., 426 B.R. 6, 10 (Bankr. D. Mass. 2010), I have reviewed Schedule C to the bankruptcy petition in the main case and determined that the plaintiff claimed exemptions in his real property as well as $16,500 of claims against the defendant for violations of the MCCCDA. Neither the Chapter 13 Trustee (before the case was converted) nor the Chapter 7 Trustee objected to either of these exemptions, so the exemptions are deemed valid.Taylor v. Freeland Kronz, 503 U.S. 638, 112 S.ct 1644, 118 L. Ed. 2d 280 (1992). Because the plaintiff has exempted the property and the first $16,500 of recovery on his claims, he is a real party in interest and has standing to bring this action.Wissman, 942 F. 2d at 870. If the plaintiff is successful, the Chapter 7 Trustee will be entitled to receive a portion of any recovery over and above that amount. Schwab v. Reilly, ___ U.S. ___, 130 S.ct 2652, 2669, 177 L. Ed. 2d 234 (2010).
Failure to State a Claim for Relief
Finally, the defendant argues that in his complaint the plaintiff fails to state a claim under Fed.R.Civ.P. 12(b)(6), made applicable by Fed.R.Bankr.P. 7012. In deciding a motion to dismiss under Rule 12(b)(6), a court must review the complaint and the documents attached to it to determine if the complaint contains sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. Bell Atlantic v. Twombley, 550 U.S. 544, 570, 127 S.ct 1955, 1966, 167 L. Ed. 2d 929 (2007); Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009). A court must accept as true the factual allegations of the complaint but not the legal conclusions, even if couched as facts. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.ct 1937, 1947, 173 L. Ed.2d 868 (2009). Recitations of the elements of a cause of action supported only by legal conclusions are insufficient to withstand a motion to dismiss. Id.
In Count I, the plaintiff alleges that the defendant violated the MCCCDA by overstating the annual percentage rate ("APR") of the mortgage loan and the related finance charge on the Truth in Lending disclosure statement that he received in connection with the closing of the loan, thereby entitling him to rescind the loan transaction. While MCCCDA § 10 permits the rescission of certain improperly-disclosed transactions for a period of four years after the consummation of the loan, it does not allow a borrower to rescind because of overstatements of the APR or finance charge.
MCCCDA § 10(i)(2) provides that for purposes of exercising rescission rights after the initiation of a foreclosure process, "the disclosure of the finance charge and other disclosures affected by any finance charge shall be treated as being accurate for the purposes of this section if the amount disclosed as the finance charge . . . is greater than the amount required to be disclosed under this chapter." Borrowers facing foreclosure may not, therefore, rescind a loan because of an overstatement of a finance charge.
Since the complaint does not allege whether the foreclosure process had begun when the plaintiff attempted to rescind the loan, this statutory provision does not necessarily resolve the matter. Other sections of the MCCCDA, however, make it clear that regardless of the pendency of foreclosure, the overstatement of the finance charge or the APR does not violate the statute. Section 4(f)(1)(b) provides that overstated finance charges are considered accurate for the purpose of the truth in lending disclosure. Section 5(c) allows for APR disclosures to be within one eighth of one percent of the actual APR, but authorizes the commissioner of banks to promulgate regulations permitting a greater tolerance of error. The corresponding regulation, 209 Mass. Code Regs. § 32.22(1)(d)(2), states that a disclosed APR will be considered accurate for the purpose of rescission if the "disclosed finance charge would be considered accurate" under 209 Mass. Code Regs. § 32.23(7) or (8). Sections 32.23(7) and (8) allow the disclosed finance charge to be considered accurate, whether or not a foreclosure is pending, if it is "greater than the amount required to be disclosed." The plaintiff, therefore, fails in Count I to state a claim for rescission of the loan transaction because that remedy is unavailable when the disclosed finance charge and APR are greater than the actual costs of the loan.
In Count II of the complaint, the plaintiff alleges that since the defendant failed to provide him with a compliant notice of his right to cancel the transaction, he retained the right to rescind the loan transaction until three days after the form (in duplicate) was eventually provided. The plaintiff alleges that he did not receive the requisite two copies of the notice at the closing on December 7, 2007. At the closing, the plaintiff acknowledges that he signed two copies of the notice, but alleges that these copies contained an added "confirmation certificate" post dated to December 12, 2007, indicating that the plaintiff had waived his right to rescind. According to the complaint, these were the only copies that the plaintiff received, and he received them after the closing had been completed. The plaintiff claims that because he never received a proper notice of the right to rescind, namely one that did not already contain a pre-signed waiver, Mass. Gen. Laws ch. 140D, § 10 gave him an extended right to rescind the transaction until three days after he received the proper notice.
The defendant suggests that it is a common practice in refinancing transactions for the closing attorney to offer to hold such a rescission notice in escrow pending expiration of the rescission period to save borrowers an additional trip to the closing attorney's office to sign the confirmation certificate.
The plaintiff claims to have exercised his right of rescission by notice dated December 14, 2009. A copy of this notice is attached as part of an exhibit to the complaint. The plaintiff does not indicate the origin of this copy of the notice of the right to cancel, or when he received it, yet he alleges that to this day he has never received a proper form of notice of right to cancel. For the purpose of a motion to dismiss I must rely on the facts alleged in the complaint and its attachments. Based on the plaintiff's allegation that he never received a proper notice of his right to cancel, the logical inference to be drawn is that the December 14, 2009 notice which the plaintiff sent to the defendant was created by the plaintiff's taking the only notice he did receive, namely the one containing the pre-signed waiver, and altering it by removing the waiver language. Since this supports a plausible claim, I must deny the motion to dismiss Count II of the complaint.
The remaining counts of the complaint, Count III, alleging the defendant's failure to rescind, Count IV, seeking to determine the secured status of the loan, and Count V, alleging Chapter 93A violations, are each dependant on whether Count II survives. Since Count II does survive, each of these additional counts states a plausible claim for relief and thus the defendant's motion to dismiss them will be denied.
Conclusion
The defendant's motion to dismiss is allowed as to Count I of the complaint and denied as to Counts II through V. A separate order shall issue. A pretrial order shall enter establishing deadlines and setting this matter down for trial on the following issues: (i) whether the plaintiff received a proper notice of the right to cancel; (ii) whether the plaintiff's attempted rescission was effective and (iii) for a determination of the appropriate conditions to impose on the plaintiff in exercising any right to rescind. See Wells Fargo Bank v. Jaaskelainen, 407 B.R. 449, 458-59 (D. Mass. 2009).
Dated: November 24, 2010
orrison, testified that she witnessed Morrison's husband straddle Morrison with his knees on each side of her
body and hit her. Folden testified that she offered to help Morrison, but Morrison heard her husband in the background ordering her to make Folden leave or he would kill them both.
Debbie Clifton, Morrison's daughter, also testified. She was present for the incidents described by Huckaby and offered similar testimony which supported Huckaby's contentions. Additionally, Clifton testified that on two occasions Danny Morrison nailed the doors to the family residence shut from the outside so that Morrison could not get out of the house.
Dr. Dennis Kelly, an expert in psychiatry and clinical director of the Greenwell Springs Hospital, an acute psychiatric facility, testified that at the time of her arrest, Morrison suffered from a delusional disorder, although he was not sure of the full extent of the illness. She claimed to be a model, singer, college teacher, sheriff and private investigator upon her admission to the hospital in 2000 and denied being the person who had harmed J.M. Dr. Kelly stated that in his opinion he could say with "reasonable degree of medical certainty" that Morrison "had an emotional reaction to what happened in this case . . . that was a very strong reaction and that given her underlying psychiatric vulnerabilities . . . caused her to have what we would call a psychotic break with reality." Dr. Kelly also diagnosed Morrison with paraphilia, deviant sexual arousal or deviant sexual behavior that does not necessarily rise to the level of pedophilia.
On cross-examination, Dr. Kelly admitted that when Morrison began to admit her identity and participation in the crime in 2004, she never asserted that her husband forced her to participate in the crime.
Rachel Scott, a domestic violence expert, testified that she had reviewed the instances of violence committed by Morrison's husband against Morrison and concluded that she was a victim of domestic violence and that she was in fear for her safety from Danny Morrison. Scott testified that because of Morrison's limited cognitive functioning, she was more vulnerable to intimidation and control than other women who might have a different background and level of functioning. Scott testified that Morrison was in survival mode and would do whatever it took to avoid the abuse inflicted by her husband, including commission of criminal acts.
Dr. Mark Vigen, Ph.D., a clinical psychologist, reviewed all of Morrison's records and he, along with members of his staff, interviewed her. Dr. Vigen found that Morrison had an IQ range of 65-75, was a mildly retarded, passive, dependent person who relied on others for direction. Dr. Vigen testified that Morrison had a history of mental illness including undirected paraphilia. Dr. Vigen stated that Morrison has external locus of control, meaning that she felt she had no power in her life. He admitted that such an external locus did not necessarily indicate criminal activity. Dr. Vigen testified that Morrison fit the psychological definition of an individual with battered wife syndrome. He explained that battered women minimize and rationalize and deny the wrong behavior they perform for their spouses. Similar to Scott, Dr. Vigen also found that Morrison was living in fear of her husband and was in survival mode. This caused her to do things out of fear and avoidance of violence.
On cross-examination, Dr. Vigen admitted that Morrison's truthfulness would have an impact on his opinions. He testified that although both he and Dr. Pinkston had concerns about Morrison's truthfulness in the IQ testing, extensive testing did not indicate that Morrison was a malingerer in regard to her delusional disorder.
Morrison's first argument relating to proof of aggravated rape is that the state failed to prove sexual penetration. The evidence presented at trial is sufficient to support Morrison's conviction as a principal to the charge in that she acted in concert with Danny Morrison in the sexual abuse of the child. Regarding the sexual penetration, Dr. Williams' testimony and the videotape were sufficient to establish the overwhelming implication that penetration did in fact occur. J.M. recalled that Danny Morrison put his penis against her vagina. The videotape clearly shows that the defendant's husband placed his penis against the victim's vagina and engaged in a repeated thrusting motion. Dr. Williams confirmed from his examination that the injury to the victim's vagina indicated the requisite penetration for the crime of rape. From this evidence, the jury could have concluded beyond a reasonable doubt that penetration occurred during the perpetrator's sexual intercourse with the child with Morrison's voluntary participation.
Additionally, the record does not contain a preponderance of evidence to support Morrison's claim that her commission of either offense was justified. While the testimony presented during Morrison's case-in-chief supports her contention that she suffered abuse at the hands of her husband, the evidence does not show that at the time she committed either offense she was in imminent peril of great bodily harm, or reasonably believed herself or others to be in such danger. In stark contrast, the testimony presented by the State established that: (1) Morrison alone brought J.M. to her residence; (2) before and during the offenses, J.M. did not observe Danny Morrison threaten the defendant; (3) before the offenses occurred Morrison lied to J.M. to keep her at the residence after J.M. asked to return home; (4) after the offenses Morrison offered J.M. money and gifts to keep quiet; (5) when Morrison returned J.M. home, she made no mention of the offenses; (6) the videotape of the incident does not reveal Morrison's husband threatening her in any way, but instead shows her participating willingly in the acts of abuse committed by her husband against J.M.; and (7) Morrison committed independent crimes against the child. Because the evidence presented by the State is wholly inconsistent with any claim of immediate peril, Morrison's claim of justification lacks merit.
II.
In her second assignment of error, Morrison argues that her trial counsel's performance was deficient because he failed to proceed with her defense of not guilty by reason of insanity. She claims that her lawyer impermissibly abandoned the defense without adequate information to do so. She also claims that there is no evidence in the record to establish whether her competency at the time of the offense was ever tested.
Although a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief rather than on appeal, this Court may resolve the issue on direct appeal if the record is sufficient. La.C.Cr.P. art. 930; State v. Willars, 27,394 (La.App.2d Cir. 9/27/95), 661 So.2d 673.
To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. The relevant inquiry is whether counsel's representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Id. The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir. 4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991). See also, State v. Tilmon, 38,003 (La.App.2d Cir. 4/14/04), 870 So.2d 607, writ denied, 04-2011 (La. 12/17/04), 888 So.2d 866.
Second, the defendant must show that counsel's deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Id. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Id.; State v. Pratt, 26,862 (La.App.2d Cir. 4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir. 4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.
In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La.R.S. 15:432. To rebut this presumption of sanity and avoid criminal responsibility, defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not negated by the mere existence of mental disease or defect. To be exempted of criminal responsibility, defendant must show she suffered a mental disease or mental defect which prevented her from distinguishing between right and wrong with reference to the conduct in question. La.R.S. 14:14; State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27; State v. Foster, 26,134 (La.App.2d Cir. 12/9/94), 647 So.2d 1224, writ denied, 95-0548 (La.6/30/95), 657 So.2d 1026.
In this matter, Morrison chose to go to trial maintaining a plea of not guilty by reason of insanity. At trial, the defense presented the only expert testimony regarding the issue of Morrison's mental health. Nevertheless, both experts limited their opinion testimony to the consideration of the battered spouse syndrome, with neither being asked for an opinion regarding Morrison's ability to distinguish between right and wrong at the time of the offense. In fact, in closing arguments, defense counsel conceded that the experts were not asked that question because "that's not our defense in this case." The earlier psychiatric assessment of Morrison by Dr. Pinkston, who had indicated in his opinion that Morrison was able to distinguish between right and wrong at the time of the offense, was not presented to the jury. Thus, from the record before us, a complete understanding of the abandonment of the insanity defense cannot be gained for a determination of whether ineffective assistance of counsel occurred. With this insufficiency in the present record, this matter more properly lends itself to the presentation of evidence at a post-conviction hearing. Accordingly, the issue raised by this assignment of error must be raised through an application for post-conviction relief.
III.
In her third assignment of error, Morrison contends that the trial court erred in refusing to grant her pretrial motion to suppress the search warrant because the description of the place to be searched was inadequate. More specifically, Morrison argues that the search warrant was invalid because it incorrectly stated that the Morrison house was the only house at the end of the driveway. As a result, Morrison argues that the videotape seized as a result of the search should have been suppressed and her convictions reversed.
Both at the pretrial hearing and trial, Jackson Parish Sheriffs Deputy Stephen Watts testified regarding his preparation and execution of the search warrant at issue. Deputy Watts obtained the search warrant for the Morrison residence after speaking with J.M. Deputy Watts, who was familiar with the location of the Morrison residence, drove there and took pictures of the residence to attach to his search warrant. The application for the search warrant described the residence as follows:
if one was traveling south on U.S. Highway 167 from Jonesboro, toward Winn-field, you would enter the community known as Wyatt, you would turn left onto Louisiana 505 and travel east 1.5 miles, and you find a mailbox on the left side of the road with the name DANNY in orange letters on top of the mailbox. The driveway is at the mailbox. You would turn to the left off of highway 505 into the driveway, you would travel approximately 400 feet to the only residence on the driveway. The residence is at the end of the driveway and consists of a barn type structure and an upstairs area that contains the residence. This residence is known by affiant to be the residence of Danny and Ruth Morrison.
The law addressing this issue is provided in La.C.Cr.P. art. 162, which states:
A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.
The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. State v. Korman, 379 So.2d 1061 (La. 1980); State v. Petto, 354 So.2d 563 (La. 1978); State v. Cobbs, 350 So.2d 168 (La. 1977). Hence, "a minor error in a portion of the description of the premises to be searched does not invalidate the search." Korman, supra. But, if police officers knowingly search an entirely different premises than that described in the warrant, the evidence seized will be suppressed because the warrant did not particularly describe the place to be searched. State v. Manzella, 392 So.2d 403 (La. 1980).
In this case, the residence which was searched by the police was "particularly described" in the warrant. In fact, the search warrant specifically describes the route Deputy Watts took in order to arrive at the Morrison residence. Moreover, the photographs depicting the residence leave little possibility for error. Although other structures were on the property, they were across the pond and approximately 100 yards from the building Deputy Watts described in the search warrant as the Morrison residence. Given Deputy Watts' familiarity with the location of Morrison's residence and the meticulousness with which he acted in securing the warrant, there is no merit to Morrison's contention that the search warrant did not describe the place to be searched with sufficient particularity.
IV.
Morrison argues that the trial court erred by failing to grant a mistrial when the prosecutor referred to her affirmative defense of justification as an excuse. She claims that this description of her defense by the prosecutor was an inaccurate statement of the law and prejudiced her defense.
During voir dire, the prosecutor stated that an affirmative defense "is basically for lack of a better word, an excuse." Morrison's trial counsel moved for a mistrial which was denied by court. In so ruling, the trial judge stated:
And I'm concerned about the language but I don't think the defendant has been prejudiced at this point and if we move forward and be more careful about telling the jury that they think the Judge is going to instruct them as to what the law may be.
When the jury returned to the courtroom, the trial judge admonished them that comments made by lawyers were not necessarily the correct law and he would instruct them on the law whenever the appropriate time came.
La.C.Cr.P. art. 775 provides in pertinent part:
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.
A prosecutor's misstatements of the law during voir dire examination, or in his opening and closing remarks, do not require reversal of a defendant's conviction if the court properly charges the jury at the close of the case. State v. Cavazos, 610 So.2d 127 (La. 1992). The court will not reverse a conviction if not "thoroughly convinced" that the argument influenced the jury and contributed to the verdict. State v. Legrand, 02-1462 (La.12/3/03), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005). The determination of whether actual prejudice has occurred which would warrant a mistrial lies within the sound discretion of the trial judge; this decision will not be overturned on appeal absent an abuse of that discretion. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).
In State v. Cheatwood, supra, the Louisiana Supreme Court stated the following in referring to justification defenses:
Since "justification" defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused's conduct
excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence.
(Emphasis Added.)
Even if the prosecutor's reference to Morrison's affirmative defense of justification as an "excuse" is considered as an incorrect and misleading statement of law, the trial judge instructed the jury when they were empaneled that comments made by the lawyers were not necessarily the correct statement of the law. Moreover, the record reflects that the trial court properly instructed the jury on the defense of justification, thus further curing any possible prejudice which may have occurred in the prosecutor's comment. For these reasons, this assignment of error has no merit.
V.
Morrison argues that under the circumstances of this case the mandatory life sentence imposed by the trial court for her conviction for aggravated rape constitutes cruel, unusual, and excessive punishment under the U.S. Constitution. Similarly, she contends that her sentence of 20 years for her conviction for aggravated oral sexual battery is excessive due to her low IQ, history of physical and sexual abuse and the lack of a meaningful relationship with her mother.
At the time Morrison committed the offense of aggravated rape, La.R.S. 14:42 provided in pertinent part:
C. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. However, if the victim was under the age of twelve years,
as provided in Paragraph A(4) of this Section, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, of sentence, in accordance with the determination of the jury.
Likewise, La.R.S. 14:43.4 defined the crime of oral sexual battery in pertinent part:
C. Whoever commits the crime of aggravated oral sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than twenty years.
This Court has held that the burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must "clearly and convincingly show that he is exceptional, which in this context means 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." State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Robbins, 43,240 (La.App.2d Cir. 6/4/08), 986 So.2d 828, writ denied, 08-1438 (La.2/20/09), 1 So.3d 494; State v. Wade, 36,295 (La.App.2d Cir. 10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.
As this Court stated in State v. Ponsell, 33,543 (La.App.2d Cir. 8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490:
Although . . . the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive.
In State v. Foley, 456 So.2d 979 (La. 1984), the Louisiana Supreme Court expounded at length on the constitutionality of the mandatory sentence found in La.R.S. 14:42. The Court held that the mandatory life sentence for aggravated rape is a valid exercise of the state legislature's prerogative to determine the length of sentence for crimes classified as felonies. This Court has affirmed the mandatory life sentence for aggravated rape as not being unconstitutional. State v. Ingram, 29,172 (La.App.2d Cir. 1/24/97), 688 So.2d 657, unit denied, 97-0566 (La.9/5/97), 700 So.2d 505.
In cases where there is no mandatory sentence, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La. App.2d Cir. 2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir. 11/1/06), 942 So.2d 658, units denied, 06-2768, 06-2781 (La.6/22/07), 959 So.2d 494.
In those cases, appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La.C.Cr.P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La. 1992); State v. Linnear, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Linnear, supra.
The second prong is constitutional excessiveness. A sentence violates La.Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.
Absent a showing of manifest abuse of that discretion this Court may not set aside a sentence as excessive. State v. Guzman, supra; State v. June, 38,440 (La. App.2d Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir. 1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.
In relation to her life sentence for aggravated rape, Morrison fails to argue or present any evidence that she is an "exceptional" defendant for which downward departure from the mandatory maximum sentence for aggravated rape is warranted. Thus she has failed to clearly and convincingly show that the imposed sentence is not meaningfully tailored to the gravity of the offense. Moreover, Morrison's poor choices and the unfortunate circumstances of her life fail to mitigate the egregiousness of an offense which involved the seeking out of a nine-year-old child for unconscionable acts of perversion.
Similarly, Morrison is equally unpersuasive in her argument regarding her receipt of the maximum sentence allowed under La. U.S. 14:43.4. Adequate La.C.Cr.P. art. 894.1 compliance is evident on the record. The trial court specifically considered Morrison's claim that she was mentally deficient and the factors she had utilized in her defense of justification. The court noted the jury's evident rejection of her justification. Therefore, he also considered Morrison's conduct. Her victim was a young child she knew. She put the child in danger by knowingly obtaining and subjecting the child to her husband — who she knew to be abusive. She lured the child to her home under the false pretense that she would take her to a church function. She knew her actions were wrong because she offered the child a reward to remain quiet. In addition to providing a reasonable factual basis for the imposed sentence, these factors also serve to qualify Morrison as the worst possible offender. Accordingly, the chosen sentence not only is meaningfully tailored to the culpability of this offender, but is suited to the gravity of the offense. Morrison's arguments to the contrary are without merit.
Error Patent
An error patent review reveals that the trial court failed to specify that Morrison's 20-year sentence for aggravated oral sexual battery be served without benefit of parole, probation, or suspension of sentence pursuant to La.R.S. 14:14.43.4. Nevertheless, when a trial court fails to order that a sentence should be served without benefit as mandated by the statute, those required restrictions are self-activating and there is no need to remand for a ministerial correction of an illegally lenient sentence. La.R.S. 15:301.1(A); State v. Williams, 00-1725 (La.1 1/28/01), 800 So.2d 790; State v. Braziel, 42,668 (La. App.2d Cir. 10/24/07), 968 So.2d 853.
Conclusion
For the foregoing reasons, Morrison's convictions and sentences are affirmed.
AFFIRMED.