Opinion
NO. 19-KA-253
12-18-2019
STATE of Louisiana v. Edward WEST
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Seth W. Shute, Emily E. Booth COUNSEL FOR DEFENDANT/APPELLANT, EDWARD WEST, Jane L. Beebe COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Jeffrey M. Landry, Colin Clark, J. Taylor Gray
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Seth W. Shute, Emily E. Booth
COUNSEL FOR DEFENDANT/APPELLANT, EDWARD WEST, Jane L. Beebe
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Jeffrey M. Landry, Colin Clark, J. Taylor Gray
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
WICKER, J.
Defendant-Appellant, Edward West, was convicted before the 24th Judicial District Court, Parish of Jefferson, of two counts of armed robbery and one count of felon in possession of a firearm. Defendant's motion for new trial was denied on November 8, 2018, and Defendant appealed. He assigns error to the judgment denying the motion for new trial arguing that the evidence is insufficient to support his conviction for armed robbery of Ruth Peacock and that his conviction based on a non-unanimous jury verdict is unconstitutional.
FACTUAL HISTORY
On the evening of November 19, 2016, at approximately 7:50 p.m., Amie Lafrance was heading home from her shift at Sam's Club, 1527 Manhattan Boulevard, Harvey, Louisiana. After arriving at her vehicle in the parking lot of Sam's Club, Ms. Lafrance realized someone had approached her from behind. Ms. Lafrance turned to see an African-American man wearing black jeans and a black hoodie, with the hood raised over his head. He asked Ms. Lafrance where the nearest bus station was located. She answered, and the man repeated his question, then stood looking at Ms. Lafrance for several seconds before moving toward her and lunging at the clutch in her hand. When Ms. Lafrance did not immediately release the clutch, the man pulled a short-barreled revolver from somewhere at his side, pointed it at her, and then pushed her to the ground, scattering her belongings. After grabbing twenty dollars from inside Ms. Lafrance's clutch, the suspect fled in the direction of the Wal-Mart, which is located in the same parking lot as Sam's Club. Ms. Lafrance immediately dialed 911 and reported the crime.
Meanwhile, Ruth Peacock and her daughter Sandra were walking to their vehicle after shopping at Wal-Mart. While loading items into the vehicle, Ms. Peacock heard honking and looked in the direction of the noise; as she looked she saw a man walking across the parking lot. Not thinking anything of it, Ms. Peacock continued loading her vehicle. However, Ms. Peacock shortly sensed someone approaching and turned just as a dark-skinned man with dark pants and a dark hoodie passed by her and grabbed the purse off of her arm. Ms. Peacock yelled, "My purse!" as the man moved quickly away, at which point the man turned his head such that Ms. Peacock could see the "sneer" he flashed her from beneath his hood. Ms. Peacock's daughter, Sandra, chased after the suspect as he ran across the Wal-Mart parking lot toward Manhattan Boulevard. As Sandra continued to follow the man across the parking lots of Lowes and PetSmart, other shoppers joined in the chase.
At approximately 7:52 p.m., a witness called 911 to report that a black male wearing a black hoodie and jeans had just stolen a woman's purse and ran in the direction of PetSmart. At the same time, Deputy Henry DeJean was responding to the first 911 call and met Sandra Peacock and the other witnesses in the PetSmart parking lot. The excited group ran up to Deputy DeJean pointing and shouting that the man was crossing Manhattan heading toward the Twin Tire shop. Deputy DeJean caught sight of the suspect in his side mirror and quickly turned his vehicle around to give chase. After making the turn onto Ute Drive from Manhattan Boulevard, Deputy DeJean observed the suspect climb over the fence behind the Twin Tire shop at the 1600 block of Ute Drive. Deputy DeJean continued to follow the suspect's movements through the small apartment complex behind Twin Tire as he waited for back-up to set up a perimeter.
Deputy DeJean believed the suspect had entered one of the apartments at 1628 Ute Drive, and as a perimeter was secured around the complex, witnesses in the parking lot of the complex pointed officers in the direction of the same building. As officers were working to systematically clear each apartment building looking for the suspect, a K-9 unit arrived and tracked from where the suspect was seen jumping the fence to the front door of apartment B. From where Deputy DeJean was standing, he was able to see inside the kitchen of apartment B where he observed a black male sitting at the table with a Hispanic female and two Hispanic males. After clearing the other apartments in the building, officers knocked on the door of apartment B and announced their presence.
According to Defendant, his mother lives at 1616 Ute Drive, Apartment E. Defendant claims to have traveled from the seventh ward by bus on the date in question to see his mother. After stopping by a certain apartment to buy a bag of weed, Defendant bought some cigars for rolling weed and a diet coke for his mother at the RaceTrac gas station. Defendant's mother was not at home when he arrived at her apartment, so he knocked on the door of 1628 Ute Drive, apartment B, to borrow Daniel Jiminez's phone. Jiminez, who was at home that evening with his sister Martha and her husband Daniel Mota, remembered Defendant wearing a dark jacket of some sort when he first answered the door, but after staying outside on the phone for three to five minutes, Defendant came back inside the apartment wearing a white button-down shirt.
When Deputy DeJean knocked on the door of apartment B, everyone in the apartment came to the door except Defendant. Jiminez said that Defendant had been there for about fifteen minutes prior to Deputy DeJean knocking on the door. Deputy DeJean noticed that Defendant was wearing an ill-fitting white button-down shirt and sweating. After asking Defendant to come to the door, Deputy Dejean observed a cellophane bag containing marijuana and ecstasy in the front pocket of Defendant's shirt. Deputy DeJean placed Defendant under arrest at that time and read him his Miranda Rights. After obtaining consent to search apartment B, officers recovered a black sweatshirt lying across the bed in the bedroom used by Daniel Jiminez and Martha's son. A Smith & Wesson revolver with a wooden handle and a two or three-inch barrel was recovered from a dresser drawer inside the bedroom as well.
Amie Lafrance and Ruth Peacock were brought separately to 1628 Ute Drive to perform a show-up identification. Amie Lafrance noted that Defendant was dressed differently than when he had robbed her, but she positively recognized his face. Ms. Peacock warned officers that she might not be able to identify the suspect because she did not get a good look at his whole face. However, although Defendant was wearing a white shirt instead of the dark coat Ms. Peacock was expecting, she recognized Defendant as the man who had robbed her when Defendant turned to give an officer the same "sneer" she had seen before.
On November 23, 2016, officers were dispatched to 1700 Ute Drive. The owner of the residence found a purse belonging to Ruth Peacock and a Smith & Wesson .38 snub-nosed revolver located in the space between a chain-link fence and a wooden security fence that run parallel to one another dividing the yard at 1700 Ute Drive from the apartment building at 1628 Ute Drive.
PROCEDURAL HISTORY
On January 19, 2017, the State of Louisiana charged Defendant by bill of information with committing armed robbery in violation of La. R.S. 14:64 (count one); armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A) (count two); and felon in possession of a firearm in violation of La. R.S. 14:95.1 (count three). Defendant was arraigned and pled not guilty on February 7, 2017. On September 5, 2017, the State amended the bill of information to remove La. R.S. 14:64.3(A) from count two; the new charge being armed robbery with a firearm in violation of La. R.S. 14:64.
La. R.S. 14:64.3(A) carries a sentence enhancement of an additional five years imprisonment at hard labor without benefit of parole, probation or suspension of sentence to be served consecutively with the sentence imposed under La. R.S. 14:64.
A jury trial of this matter was held on September 5-6, 2017; the trial court declared a mistrial when the jury was unable to reach a verdict. Thereafter, a second jury trial commenced on October 24, 2018, and on October 25, 2018, the jury returned a verdict of guilty as charged on all counts. On November 8, 2018, Defendant's motion for new trial was denied. Defendant was then sentenced to fifteen years at hard labor on counts one, two, and three to be served concurrently, without benefit of probation, parole, or suspension of sentence, with credit for time served. On January 9, 2019, Defendant filed a motion for out-of-time appeal, which was granted on January 15, 2019.
ASSIGNMENT OF ERROR
Defendant argues that it was error for the trial court to deny his motion for new trial on the grounds that the verdict is contrary to the law and evidence because (1) the evidence was not sufficient to support a conviction for armed robbery of Ruth Peacock, and (2) the non-unanimous jury verdict—in light of recent amendments to La. Const. Art. 1, § 17 (A) and La. C.Cr.P. art. 782(A) and the fact that a prior trial of this matter ended in a hung jury—is "wholly unfair and violative of [Defendant's] state constitutional and federal constitutional protections for equal protection and due process."
DISCUSSION
Sufficiency of the Evidence
When sufficiency of the evidence is challenged on appeal along with other assignments of error, the appellate court should look first to the sufficiency of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992). The relevant question when reviewing sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Mathews , 375 So.2d 1165, 1168 (La. 1979) ; State v. Richardson , 18-717 (La. App. 5 Cir. 9/4/19), 279 So.3d 501, 508.
When cases involve circumstantial evidence, the jury must assume "every fact to be proved that the evidence tends to prove" and then find that the evidence "exclude[s] every reasonable hypothesis of innocence" in order to convict. La. R.S. 15:438. It is not enough for the reviewing court to determine that the defendant has offered a possible exculpatory explanation of events, but rather, the court must determine that the "alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt." State v. Washington , 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973, 977. Findings of fact based on the weight of the testimony and credibility of witnesses are entitled to great deference and may only be disturbed when there is no evidence to support those findings. State v. Hunt , 09-1589 (La. 12/1/09), 25 So.3d 746, 751.
The prosecution in this case was required to prove the essential elements of armed robbery with respect to each alleged victim beyond a reasonable doubt. Armed robbery is "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." La. R.S. 14:64. A weapon does not have to be seen by anyone or recovered by the police to satisfy the element that the defendant was armed with a dangerous weapon during the commission of the robbery. State v. Phillips , 13-154 (La. App. 5 Cir. 12/12/13), 130 So.3d 416, 421 ; State v. Page , 02-689 (La. App. 5 Cir. 1/28/03), 837 So.2d 165, 176, writ denied , 03-0951 (La. 11/7/03), 857 So.2d 517.
It is also necessary that the prosecution prove the identity of the defendant as the perpetrator of the offense. State v. Alexander , 16-84 (La. App. 5 Cir. 7/27/16), 197 So.3d 843, 849, writ denied , 16-1619 (La. 6/16/17), 219 So.3d 340 ; State v. Ray , 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied , 13-1115 (La. 10/25/13), 124 So.3d 1096. A positive identification by a single witness is sufficient to support a conviction of armed robbery. State v. Bell , 14-735 (La. App. 5 Cir. 3/11/15), 169 So.3d 574, 577, writ denied , 15-0759 (La. 3/14/16), 189 So.3d 1068, cert. denied , ––– U.S. ––––, 137 S.Ct. 99, 196 L.Ed.2d 83 (2016). The fact finder's belief in the testimony of one witness is sufficient to support a requisite factual finding in the absence of internal contradiction or irreconcilable conflict with physical evidence. Id.
Defendant does not challenge the sufficiency of the evidence with respect to the victim in count two, Amie Lafrance. Defendant challenges the sufficiency of the evidence on the conviction of armed robbery of Ruth Peacock, the victim in count one, on the grounds that the victim only claimed to have seen something she thought might have been a water bottle attached to the robber's waistband. Ruth Peacock's daughter, who was with her at the time, testified that she did not see the robber's face or a gun. Defendant argues that, because Ruth Peacock was the only witness implicating Defendant in count one, and she did not see him possess a gun, her testimony alone cannot satisfy the standard of proof beyond a reasonable doubt that Defendant committed the robbery while armed with a dangerous weapon.
However, defendant testified in his own defense that he did not rob anyone, especially not with a handgun.
A reasonable juror could have determined beyond a reasonable doubt that the man who robbed Ms. Lafrance with a revolver also robbed Ms. Peacock. While Ruth Peacock was named as the victim in count one and Amie Lafrance was named as the victim of count two, the crimes actually occurred in reverse order. Ms. Peacock was robbed in the Wal-Mart parking lot only minutes after Ms. Lafrance called to alert the authorities that the man who robbed her at gunpoint headed in the direction of Wal-Mart across the parking lot. Ms. Lafrance described the gun the robber pulled on her as a short-barreled revolver. Witnesses saw the man that robbed Ruth Peacock flee in the direction of the apartment complex in which 1628 Ute Drive is located. A short-barreled Smith & Wesson .38 special was recovered along with Ruth Peacock's purse from the fence behind 1628 Ute Drive.
Furthermore, a reasonable juror could have determined beyond a reasonable doubt that Defendant was the man that robbed Ms. Lafrance and Ms. Peacock while armed with a dangerous weapon. Both Ms. Lafrance and Ms. Peacock positively identified Defendant as the man who robbed them. Ms. Lafrance testified that Defendant pulled the revolver on her while attempting to wrestle her clutch from her. Reason would suggest that the gun was still in Defendant's possession when he snatched Ms. Peacock's purse off of her shoulder and fled the Wal-Mart parking lot in the direction of 1628 Ute Drive, especially since the gun was eventually recovered in the same location as Ms. Peacock's belongings.
The evidence is sufficient to support Defendant's conviction for armed robbery of Ms. Peacock. Defendant next argues that his conviction cannot be upheld on the grounds that a non-unanimous jury verdict is unconstitutional.
Non-unanimous Jury Verdict
Two days prior to Defendant filing his motion for new trial on November 8, 2018, Louisiana voters passed amendments to La. Const. Art. 1, § 17 (A) and La. C.Cr.P. art. 782(A), to require unanimous jury verdicts for offenses punishable by confinement necessarily at hard labor. Defendant references the amendments, along with the fact that his previous trial ended in a hung jury and his current conviction resulted from a jury verdict of 10-2 in favor of guilt, as evidence that the non-unanimous jury verdict is a violation of Defendant's equal protection and due process rights. Constitutional amendments are interpreted to have prospective affect only unless a contrary intention is expressly declared. See State v. Draughter , 13-0914 (La. 12/10/13), 130 So.3d 855, 863. Defendant acknowledges that the language of the amendment to La. Const. Art. 1, § 17 (A) specifically limits its application to those crimes committed on or after January 1, 2019. As the crimes for which Defendant was convicted occurred on November 19, 2016, the unanimous jury requirement explicitly does not apply to his case. However, Defendant maintains that Draughter requires that "a new rule for the conduct of criminal prosecutions is to be applied retroactively" to cases wherein the convictions are pending on direct appellate review or not yet final. Id. (citing Griffith v. Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) ).
Defendant challenged the constitutionality of the pre-amendment versions of La. Const. Art. 1, § 17 (A) and La. C.Cr.P. art. 782(A) in his motion for new trial, and asserted for the first time on appeal that State v. Draughter , 13-0914 (La. 12/10/13), 130 So.3d 855, applies to his case and requires retroactive application of the unanimous jury rule. A post-conviction motion is not the proper procedural vehicle to attack the constitutionality of unanimity laws. See State v. Ellis , 13-1401 (La. App. 4 Cir. 2/4/15), 161 So.3d 64, 82, writ denied , 15-489 (La. 1/15/16), 184 So.3d 704. The State also urges this Court to decline to address the merits of Defendant's constitutional challenge because Defendant failed to serve or otherwise provide notice of the constitutional challenge to the attorney general.
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Prior to the amendments at issue, both the United States Supreme Court and the Louisiana Supreme Court have upheld the constitutionality of non-unanimous jury verdicts in state courts. State v. Bertrand , 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738 ; Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). See also State v. Acevedo , 18-683 (La. App. 5 Cir. 5/8/19), 273 So.3d 462, 487. Unless and until a different ruling is reached by the higher courts, this Court is constrained to follow precedent. See State v. Williams , 18-112 (La. App. 5 Cir. 11/7/18), 259 So.3d 563, 580.
The trial court did not err in denying Defendant's motion for new trial.
ERRORS PATENT
The record has been reviewed for errors patent pursuant to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). There are errors patent, but none that require corrective action by this Court.
First, Defendant was not re-arraigned after the State amended the bill of information altering the charge in count two from a violation of La. R.S. 14:64.3(A) to a violation of La. R.S. 14:64. However, re-arraignment is not required where the substance of the charge has not changed. See State v. Tillery , 14-429 (La. App. 5 Cir. 12/16/14), 167 So.3d 15, 28–29, writ denied , 15-0106 (La. 11/6/15), 180 So.3d 306. At all times, the bill of information reflected that the armed robbery of Amie Lafrance was carried out with a firearm, therefore, removing the sentence enhancing charge, La. R.S. 14:64.3(A), did not require re-arraignment.
Second, it appears that the trial court imposed an illegally lenient sentence on count three: felon in possession of a firearm in violation of La. R.S. 14:95.1. La. R.S. 14:95.1 provides for a fine of "not less than one thousand dollars nor more than five thousand dollars." However, this Court has previously exercised its discretion to decline to correct an illegally lenient sentence in the case of an indigent defendant. Alexander , 197 So.3d at 853 ; State v. Campbell, 08-1226, (La. App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied , 09-1385 (La. 2/12/10), 27 So.3d 842. Defendant in this case is represented by the Louisiana Appellate Project, which represents indigent defendants in non-capital felony cases. Therefore, due to Defendant's indigent status, we decline to remand this matter for imposition of the mandatory fines.
Finally, the transcript of trial court proceedings does not indicate that the judge informed Defendant of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8. While the sentencing minute entry reflects that the trial judge advised Defendant of those provisions, in the event of a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983) ; State v. Williams, 11-427 (La. App. 5 Cir. 2/28/12), 88 So.3d 1102, 1113. Therefore, Defendant is hereby advised, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Montero , 18-397 (La. App. 5 Cir. 12/19/18), 263 So.3d 899, 909.
CONCLUSION
For the foregoing reasons, we affirm Defendant's convictions and sentences.