Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,163-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ANDRE BELL Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 354,005
Honorable Katherine Clark Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON WAYNE WALTMAN CHARLES KENNETH PARR Assistant District Attorneys
Before STEPHENS, McCALLUM, and THOMPSON, JJ. STEPHENS, J.
The defendant, Andre Bell, was originally charged by bill of
information with two counts: simple robbery and attempted first degree
murder. The bill of information subsequently was amended to change the
second count to aggravated assault with a motor vehicle upon a peace
officer, a violation of La. R.S. 14:37.6. After a jury trial, a mistrial was
ruled on the simple robbery charge, but Bell was convicted of aggravated
assault upon a peace officer. He was subsequently sentenced to serve 10
years’ imprisonment at hard labor with credit for time served, which he
argues on appeal is excessive. The following evidence was adduced at
Bell’s trial.
On the evening of Friday, November 24, 2017, Cindy Gandy was a
patron at the Sam’s Town Casino in Shreveport, Louisiana. She was playing
a video poker game, and a young man approached her, asking if she objected
to his watching. The man was subsequently identified as Andre Bell. He
stood behind her while they conversed, with Gandy continuing to play video
poker. Gandy testified she had previously won a $1,200 jackpot and was
holding the payout in her hand. She testified at trial that Bell did not smell
of alcohol, and she never thought he was slurring his words or acting
intoxicated. At some point, Bell snatched some of Gandy’s cash and ran
away. When she saw a security officer, Gandy called for help.
At trial, Gary Thomas, an employee of Sam’s Town Casino, testified
he was in charge of the risk, safety, and security of the casino. Thomas
confirmed he was aware of a “snatch and grab” incident in November 2017
that occurred on the casino floor—he heard the radio call that an incident
had occurred. Knowing the direction the perpetrator was heading, Thomas ran toward the garage. He heard a police officer yelling his rank and several
commands, “stop, police, stop, police,” after which Thomas saw a vehicle
accelerate toward the direction of the two officers. Thomas heard numerous
gunshots, and the vehicle left the garage.
Michael Hall also testified at trial that on November 24 he was
employed as “security lead” at Sam’s Town Casino, which meant he was a
supervisor over 11 security officers. Hall heard the call on the radio that an
African American male dressed in white and black athletic clothing had
taken a ticket or money from a patron on the casino floor. Shortly after
receiving the call, he saw someone matching the description, i.e., Bell. Hall
stopped Bell and attempted to question him, but Bell ran out of the casino.
Hall pursued him, by that time along with Shreveport Police Department
(“SPD”) officers, and Bell ran into the garage. When Hall was at the exit of
the garage, the SPD officers were yelling at Bell, now in a vehicle, to stop;
however, Bell increased his speed.
Sergeant Danny Duddy, an off-duty SPD officer working as security
for the casino, received a radio transmission that a robbery suspect was
fleeing from the casino. Sergeant Duddy positioned himself at the bottom of
the ramp with his weapon drawn. Sergeant William Vincent, another off-
duty SPD officer working as security for the casino, was also in the parking
garage. Sergeant Vincent was located closer toward the entrance of the
garage, while Sgt. Duddy was farther up the ramp.
As Bell travelled down the ramp and toward the exit, Sgt. Duddy
moved toward the center of the ramp and into the path of Bell. Bell’s
vehicle made a slight motion to the left, toward Sgt. Duddy—this action of
driving toward the officer underlies the charge of aggravated assault. Bell 2 then continued down the ramp and toward the exit. Sergeant Duddy fired 11
shots at Bell’s vehicle as it exited the garage, and one of the shots hit Bell’s
shoulder. Bell’s vehicle exited the parking garage, turned right onto Fannin
Street, and spun out of control. Bell regained control of the vehicle and
continued down the street; he subsequently ran a red light, causing a
collision. The activity in the casino garage was captured on the casino’s
video security cameras.
At the conclusion of evidence and closing arguments, the jury retired
to deliberate. As it could not reach a unanimous verdict for the simple
robbery charge, the trial court ruled a mistrial on that charge. The jury did,
however, find Bell guilty of aggravated assault with a motor vehicle on a
peace officer. Bell filed a motion for post-verdict judgment of acquittal,
arguing that the state failed to prove beyond a reasonable doubt that he
committed the crime for which he was convicted. The motion was
subsequently denied in open court.
On December 12, 2018, Bell appeared for sentencing, whereupon he
was sentenced to 10 years’ imprisonment at hard labor, with credit for time
served. Bell was also sentenced to pay $150 to the Indigent Defender’s
Office. In imposing sentence, the trial court found all subparagraphs of La.
C. Cr. P. art. 894.1(A) applied to Bell and articulated specific reasons for the
sentence. The court found no mitigating circumstances were applicable to
this case. The court stated that the maximum sentence was being imposed
because “of the facts of this case and the totality of the circumstances and
the total disregard for human life demonstrated by Mr. Bell on the night of
that offense.”
3 Bell filed an untimely motion to reconsider sentence on January 28,
2019, wherein he argued the aggravating factors stated by the trial court
were inadequate to support the severity of the sentence imposed. Bell
asserted the trial court improperly considered additional reasons as
aggravating factors during sentencing, and the court failed to consider all
mitigating circumstances. Bell maintained his sentence was
unconstitutionally excessive, and a lesser sentence would not deprecate the
seriousness of the offense. On March 3, 2019, the trial court ruled the
sentence was not excessive, and Bell’s actions placed “a number of people in
harm’s way, including at least two police officers.” Thus, the motion to
reconsider sentence was denied. This appeal followed.
On appeal, Bell presents only one assignment of error, arguing his
10-year maximum sentence is constitutionally excessive, primarily because
the trial court failed to consider his intoxication as a mitigating factor. He
contends that while intoxication was not used as a defense to the crime,
intoxication to any degree can be treated as a mitigating factor under La. C.
Cr. P. art. 894.1(B)(25) and (33).
As stated, the record reflects Bell was sentenced on December 12,
2018, to 10 years’ imprisonment at hard labor, with credit for time served, as
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Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,163-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ANDRE BELL Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 354,005
Honorable Katherine Clark Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON WAYNE WALTMAN CHARLES KENNETH PARR Assistant District Attorneys
Before STEPHENS, McCALLUM, and THOMPSON, JJ. STEPHENS, J.
The defendant, Andre Bell, was originally charged by bill of
information with two counts: simple robbery and attempted first degree
murder. The bill of information subsequently was amended to change the
second count to aggravated assault with a motor vehicle upon a peace
officer, a violation of La. R.S. 14:37.6. After a jury trial, a mistrial was
ruled on the simple robbery charge, but Bell was convicted of aggravated
assault upon a peace officer. He was subsequently sentenced to serve 10
years’ imprisonment at hard labor with credit for time served, which he
argues on appeal is excessive. The following evidence was adduced at
Bell’s trial.
On the evening of Friday, November 24, 2017, Cindy Gandy was a
patron at the Sam’s Town Casino in Shreveport, Louisiana. She was playing
a video poker game, and a young man approached her, asking if she objected
to his watching. The man was subsequently identified as Andre Bell. He
stood behind her while they conversed, with Gandy continuing to play video
poker. Gandy testified she had previously won a $1,200 jackpot and was
holding the payout in her hand. She testified at trial that Bell did not smell
of alcohol, and she never thought he was slurring his words or acting
intoxicated. At some point, Bell snatched some of Gandy’s cash and ran
away. When she saw a security officer, Gandy called for help.
At trial, Gary Thomas, an employee of Sam’s Town Casino, testified
he was in charge of the risk, safety, and security of the casino. Thomas
confirmed he was aware of a “snatch and grab” incident in November 2017
that occurred on the casino floor—he heard the radio call that an incident
had occurred. Knowing the direction the perpetrator was heading, Thomas ran toward the garage. He heard a police officer yelling his rank and several
commands, “stop, police, stop, police,” after which Thomas saw a vehicle
accelerate toward the direction of the two officers. Thomas heard numerous
gunshots, and the vehicle left the garage.
Michael Hall also testified at trial that on November 24 he was
employed as “security lead” at Sam’s Town Casino, which meant he was a
supervisor over 11 security officers. Hall heard the call on the radio that an
African American male dressed in white and black athletic clothing had
taken a ticket or money from a patron on the casino floor. Shortly after
receiving the call, he saw someone matching the description, i.e., Bell. Hall
stopped Bell and attempted to question him, but Bell ran out of the casino.
Hall pursued him, by that time along with Shreveport Police Department
(“SPD”) officers, and Bell ran into the garage. When Hall was at the exit of
the garage, the SPD officers were yelling at Bell, now in a vehicle, to stop;
however, Bell increased his speed.
Sergeant Danny Duddy, an off-duty SPD officer working as security
for the casino, received a radio transmission that a robbery suspect was
fleeing from the casino. Sergeant Duddy positioned himself at the bottom of
the ramp with his weapon drawn. Sergeant William Vincent, another off-
duty SPD officer working as security for the casino, was also in the parking
garage. Sergeant Vincent was located closer toward the entrance of the
garage, while Sgt. Duddy was farther up the ramp.
As Bell travelled down the ramp and toward the exit, Sgt. Duddy
moved toward the center of the ramp and into the path of Bell. Bell’s
vehicle made a slight motion to the left, toward Sgt. Duddy—this action of
driving toward the officer underlies the charge of aggravated assault. Bell 2 then continued down the ramp and toward the exit. Sergeant Duddy fired 11
shots at Bell’s vehicle as it exited the garage, and one of the shots hit Bell’s
shoulder. Bell’s vehicle exited the parking garage, turned right onto Fannin
Street, and spun out of control. Bell regained control of the vehicle and
continued down the street; he subsequently ran a red light, causing a
collision. The activity in the casino garage was captured on the casino’s
video security cameras.
At the conclusion of evidence and closing arguments, the jury retired
to deliberate. As it could not reach a unanimous verdict for the simple
robbery charge, the trial court ruled a mistrial on that charge. The jury did,
however, find Bell guilty of aggravated assault with a motor vehicle on a
peace officer. Bell filed a motion for post-verdict judgment of acquittal,
arguing that the state failed to prove beyond a reasonable doubt that he
committed the crime for which he was convicted. The motion was
subsequently denied in open court.
On December 12, 2018, Bell appeared for sentencing, whereupon he
was sentenced to 10 years’ imprisonment at hard labor, with credit for time
served. Bell was also sentenced to pay $150 to the Indigent Defender’s
Office. In imposing sentence, the trial court found all subparagraphs of La.
C. Cr. P. art. 894.1(A) applied to Bell and articulated specific reasons for the
sentence. The court found no mitigating circumstances were applicable to
this case. The court stated that the maximum sentence was being imposed
because “of the facts of this case and the totality of the circumstances and
the total disregard for human life demonstrated by Mr. Bell on the night of
that offense.”
3 Bell filed an untimely motion to reconsider sentence on January 28,
2019, wherein he argued the aggravating factors stated by the trial court
were inadequate to support the severity of the sentence imposed. Bell
asserted the trial court improperly considered additional reasons as
aggravating factors during sentencing, and the court failed to consider all
mitigating circumstances. Bell maintained his sentence was
unconstitutionally excessive, and a lesser sentence would not deprecate the
seriousness of the offense. On March 3, 2019, the trial court ruled the
sentence was not excessive, and Bell’s actions placed “a number of people in
harm’s way, including at least two police officers.” Thus, the motion to
reconsider sentence was denied. This appeal followed.
On appeal, Bell presents only one assignment of error, arguing his
10-year maximum sentence is constitutionally excessive, primarily because
the trial court failed to consider his intoxication as a mitigating factor. He
contends that while intoxication was not used as a defense to the crime,
intoxication to any degree can be treated as a mitigating factor under La. C.
Cr. P. art. 894.1(B)(25) and (33).
As stated, the record reflects Bell was sentenced on December 12,
2018, to 10 years’ imprisonment at hard labor, with credit for time served, as
well as an order to pay $150 to the Indigent Defender’s Office through
inmate banking. The record also reflects on January 28, 2019, the state filed
a habitual offender bill of information, alleging Bell was a third felony
offender as set forth in La. R.S. 15:529.1. Bell’s motion to appeal, made in
connection with his preceding conviction and sentence, was filed on April
30, 2019, resulting in this subject appeal. A motion for designation of the
record was filed the same date, requesting the appeal record contain all 4 minutes of the trial court. Initially, there was no further indication in the
appeal record regarding the habitual offender proceedings against Bell.
However, pursuant to supplements to the appeal record made by both
Bell and the state, we note on September 18, 2019, the trial court minutes
reflect that for reasons orally assigned, Bell was adjudicated a third felony
habitual offender. The case was set for resentencing. On September 20,
2019, the trial court vacated Bell’s original sentence (notably, already
properly appealed by Bell) and resentenced him as a habitual offender to 15
years’ imprisonment at hard labor. Thus, Bell’s argument regarding his
original sentence is moot, because that sentence has been vacated by the trial
court and is no longer an issue.1 See, State v. White, 2018-1312 (La. App. 1
Cir. 4/12/19), 276 So. 3d 166, writ denied, 2019-00805 (La. 9/24/19), 278
So. 3d 977; State v. Riggins, 04-60 (La. App. 5 Cir. 9/28/04), 885 So. 2d 42;
see also, State v. Keys, 29,369 (La. App. 2 Cir. 5/7/97), 694 So. 2d 1107,
writs denied, 1997-1387, 1997-1497 (La. 10/31/97), 703 So. 2d 21 (where
the trial court vacated defendant’s initial sentence “before sentencing him as
a habitual offender . . . any issues relating to that sentence are moot.”).
Accordingly, Bell’s conviction is affirmed. We will not consider his
original sentence made subject of this appeal because it was vacated by the
trial court, rendering it moot on appeal. An error patent review of the
appellate record has been conducted, and no errors patent were found.
1 As noted, Bell’s appeal was granted and lodged prior to the habitual offender hearing and adjudication. This court is authorized under La. C. C. P. art. 914.1(D) to designate additional portions of the proceedings below, as supplemented by the parties, before concluding that Bell’s appeal of the original sentence is moot. See State v. Gilbert, 1999-2338 (La. 2/4/00), 758 So. 2d 779, 780 (per curiam). 5 Finally, we do not address Bell’s enhanced sentence pursuant to the habitual
offender adjudication, as it is not currently before us.
CONVICTION AFFIRMED.