STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-826
STATE OF LOUISIANA
VERSUS
KENTRELL D. MCELROY
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 75292 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
VAN H. KYZAR JUDGE
Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
AFFIRMED IN PART AND VACATED IN PART. Julie C. Tizzard 700 Camp Street, Suite 101 New Orleans, LA 70130 (504) 529-3774 COUNSEL FOR DEFENDANT/APPELLANT: Kentrell D. McElroy
Don M. Burkett District Attorney Anna L. Garcie Assistant District Attorney Eleventh Judicial District P. O. Box 1557 Many, LA 71449 (318) 256-6246 COUNSEL FOR APPELLEE: State of Louisiana KYZAR, Judge.
The defendant, Kentrell D. McElroy, appeals his convictions for armed
robbery and aggravated kidnapping. For the following reasons, we affirm the
conviction for armed robbery, but vacate the conviction for aggravated kidnapping.
DISCUSSION OF THE RECORD
The defendant was charged by bill of information filed on November 12,
2015, with aggravated kidnapping, a violation of La.R.S. 14:44, and armed
robbery, a violation of La.R.S. 14:64. After waiving his right to trial by jury, a
bench trial was held on January 17, 2017.
The evidence at trial established that the victim, Latasha McKinney, a shift
manager at the Many, Louisiana Pizza Hut restaurant, was taking a deposit to the
bank on August 24, 2015, when a man, who was hiding in the backseat of her car,
pointed a gun at her face and ordered her to keep driving. As she drove on, she
noticed a silver car following her car. The defendant subsequently took Ms.
McKinney’s phone and the cash from the money bag and threw five twenty-dollar
bills at her as he exited her car. He then got into the silver car, which drove off.
The evidence established that more than $3,000.00 was taken from Ms. McKinney.
Ms. McKinney first identified the defendant from a photographic lineup.
She later identified him as the perpetrator during her trial testimony. At the close
of the bench trial, the trial court found the defendant guilty of both aggravated
kidnapping and armed robbery.
The defendant filed a motion for post-verdict judgment of acquittal, which
was denied by the trial court. He was then sentenced to life in prison at hard labor,
without the benefit of probation, parole, or suspension of sentence, on the
aggravated kidnapping conviction, and twenty years at hard labor, without benefit of probation, parole, or suspension of sentence, on the armed robbery conviction,
with both sentences ordered to run concurrently.
On appeal, the defendant argues that the charge of aggravated kidnapping
was improperly instituted by bill of information and that the evidence was
insufficient to prove that he committed each of the offenses.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that
there are two errors patent, one of which is directly raised by the defendant herein
and is addressed in our discussion of his first assignment of error.
In addition, the defendant waived his right to trial by jury and elected to be
tried by a judge alone. While a written waiver was filed on October 18, 2016, it
was signed only by counsel for the defendant and not signed by the defendant
himself, as required by La.Code Crim.P. art. 780. In addition, the written waiver
referenced only the charge of aggravated kidnapping. However, the October 27,
2016 court minutes indicate that the defendant and his attorney were present in
court when the trial court personally addressed the defendant concerning his right
to a jury trial and the waiver thereof. Thereafter, the trial court found that the
defendant had “knowingly, intelligently and voluntarily waived his right to a trial
by jury[;]” thus, rendering the error harmless. State v. Bell, 13-1443 (La.App. 3
Cir. 6/4/14), 140 So.3d 830; State v. Brundy, 15-1233, 16-263 (La.App. 4 Cir.
8/24/16), 198 So.3d 1247, writ denied, 16-1748 (La. 6/16/17), 220 So.3d 755.
OPINION
Improper Charging Instrument
In his first assignment of error, the defendant contends that the offense of
aggravated kidnapping was improperly charged by bill of information.
2 The defendant was charged via a single bill of information with both armed
robbery and aggravated kidnapping. Louisiana Constitution Article 1, § 15
provides that “no person shall be held to answer for a capital crime or a crime
punishable by life imprisonment except on indictment by a grand jury.” Similarly,
La.Code Crim.P. art. 382(A) provides that “[a] prosecution for an offense
punishable by death, or for an offense punishable by life imprisonment, shall be
instituted by indictment by a grand jury.” Aggravated kidnapping is punishable by
life imprisonment at hard labor without benefit of probation, parole, or suspension
of sentence. La.R.S. 14:44. Therefore, the institution of prosecution for this
offense should have been by grand jury indictment. The failure to proceed by
grand jury indictment is a “fatal defect.” State v. Underdonk, 11-1598, p. 7
(La.App. 1 Cir. 3/23/12), 92 So.3d 369, 374, writ denied, 12-910 (La. 10/8/12), 98
So.3d 848; State v. Engel, 13-519, p. 3 (La.App. 5 Cir. 12/19/13), 131 So.3d 1017,
1018. Consequently, this requires reversal of the defendant’s conviction for
aggravated kidnapping.
We now turn to whether the remaining conviction for armed robbery must
also be vacated as a result of the inclusion of the aggravated kidnapping charge in
the bill of information. In State v. Donahue, 355 So.2d 247 (La.1978), the
institution of prosecution for second degree murder and armed robbery was by bill
of information. The supreme court annulled the second degree murder conviction
and discussed the armed robbery conviction as follows:
Armed robbery is neither a capital crime nor a crime punishable by life imprisonment. La.R.S. 14:64; La.Const. art. 1, § 15 (1974). It may be charged by grand jury indictment or by bill of information. State v. Williams, 341 So.2d 370 (La.1976); State v. Bradford, 298 So.2d 781 (La.1974). It is clear, therefore, that had the armed robbery charge been brought alone, it could properly have been brought by bill of information.
3 Moreover, if the second degree murder had been quashed before trial began, the prosecution for armed robbery could have continued on the valid robbery count. This is so because each count in a multiple-count charge independently charges an offense. It is this principle which underlies the entire procedure whereby offenses are joined in a single count, as explained in Wharton’s Criminal Procedure, as follows:
“Each count, being in legal contemplation a separate indictment or information must contain all the allegations necessary to constitute the offense sought to be charged in such count, for it is upon the principle of the joinder of offenses that the joinder of counts is allowed. In determining whether an indictment or information is sufficient, each count must be treated as a whole, and the jury is not required to treat such an indictment or information as an indivisible unit.” 2 Wharton’s Crim.Proc. § 295, pp. 138-39 (12th ed., Torcia ed., 1975)[.]
Thus, if one count of a two-count indictment or information is invalid, the entire accusation will not be quashed, but, instead, only the defective counts will be quashed. See Selvester v. United States, 170 U.S. 262, 18 S.Ct. 580, 43 L.Ed. 1029 (1898). Moreover, Louisiana law allows the granting of partial relief in response to a motion to quash. State v. Mitchell, 319 So.2d 357 (La.1975).
The only real question, then, is whether the charge and evidence of second degree murder presented to the jury simultaneously with the armed robbery charge so infected the otherwise properly charged and tried armed robbery prosecution as to require reversal of the armed robbery conviction. We believe that it did not.
In the first place, the two crimes arose out of the same transaction, and facts as to each would have been respectively admissible at separate trials of the other as part of the res gestae. R.S. 15:447, 448. This is not a situation where the counts could not have been joined and where such misjoinder resulted in inherent prejudice to defendant on each charge. See State v. McZeal, 352 So.2d 592 (La.1977). Here, because of a technical but fatal deficiency in one count of the accusation defendant should not have been tried on that count. Under these circumstances, we hold that our quashing of the second degree murder count post trial does not affect the otherwise valid armed robbery charge and trial, and that the conviction and sentence for the crime of armed robbery should be allowed to stand.
Thus, while we nullify defendant’s conviction and sentence for second degree murder, we find that this defect does not infect the conviction and sentence for armed robbery.
Id. at 249-50 (footnote omitted); see also Underdonk, 92 So.3d 369.
4 Thus, we conclude that the defective bill of information as to the aggravated
kidnapping count nullifies only the defendant’s conviction for that offense. If the
armed robbery charge had been brought alone, it could have properly been charged
by bill of information. Moreover, had the aggravated kidnapping charge been
quashed or severed prior to trial, the prosecution for armed robbery could have
continued separately.
The germane issue is whether the evidence of aggravated kidnapping
presented concurrently with that of the armed robbery so infected the properly
charged and tried armed robbery prosecution as to require reversal of the armed
robbery conviction. We find that it does not.
Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place’ ” State v. Colomb, 98- 2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).
5 State v. Taylor, 01-1638, pp. 10-11 (La. 1/14/03), 838 So.2d 729, 741-42, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036 (2004).
Here, the two charges arose out of the same transaction and evidence of the
aggravated kidnapping was intertwined with the armed robbery to such an extent
that the State could not have accurately presented its case for armed robbery
without reference to the aggravated kidnapping. Although we must annul the
conviction for aggravated kidnapping, we will now proceed to address the
defendant’s second assignment of error as to the sufficiency of the evidence in
regard to his conviction of armed robbery.
Sufficiency of the Evidence
In his second assignment of error, the defendant contends the evidence was
insufficient to support each of the convictions. As a result of the resolution of his
first assignment of error vacating the aggravated kidnapping conviction, we review
the sufficiency of evidence as to the conviction for armed robbery only.
“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). Furthermore, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La.4/11/00), 776 So.2d 1134, 1147.
State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (alteration in original).
6 Armed robbery is defined in La.R.S. 14:64(A), as “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.” Therefore, the State was required to prove the following elements: The
defendant engaged in the taking of anything of value, from the possession or
immediate control of another, by use of force or intimidation, and while armed
with a dangerous weapon. State v. Johnson, 440 So.2d 197 (La.App. 3 Cir. 1983),
writ denied, 444 So.2d 1240 (La.1984)
The sole issue in this assignment of error is the proof of the defendant’s
identity as the perpetrator. The defendant contends that because the State failed to
thoroughly investigate, the only evidence in the case was a single eye-witness
identification of the perpetrator, who was sitting in the backseat of a car while the
victim was driving. The defendant further argues:
While there is nothing in the transcript to indicate that the out-of-court identification itself was impermissibly suggestive, the detective did develop [the defendant] as a suspect due to his face being plastered all over the news and social media as a suspect in an unrelated crime. A crime that [he] claimed over and over to know nothing about. An unrelated crime whose only similarity was the involvement of the mysterious silver Charger that the police made no attempt whatsoever to locate the owner of. Based on the foregoing, I think it can be argued that the identification was suggestive for the purpose of determining the reliability of the identification for sufficiency purposes. Accordingly, we maintain based on the Manson factors that this suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed. 140 (1977); State v. Prudholm, 446 So.2d 729 (La.1984); State v. Valentine, 570 So.2d 533 (La.App. 4th Cir.1990).
The defendant then discusses the evidence as to the five Manson factors: 1)
the witness’s opportunity to view the defendant at the time the crime was
committed; 2) the degree of attention paid by the witness during the commission of
the crime; 3) the accuracy of any prior description; 4) the level of the witness’s
certainty displayed at the time of the identification; and 5) the length of time
7 elapsed between the crime and the identification. Manson v. Braithwaite, 432 U.S.
98, 97 S.Ct. 2243 (1977). The defendant’s counsel then concludes, stating that she
is “astounded” the State brought the case to trial without attempting to confirm the
identity of the perpetrator through DNA, especially considering he was facing a
life sentence. Counsel claims that no reasonable jurist, viewing the evidence in the
light most favorable to the prosecution, could have found that the State met its
burden of proof. We disagree.
In State v. Naas, 409 So.2d 535 (La.1981), cert. denied, 457 U.S. 1119, 102
S.Ct. 2933 (1982) (on rehearing), the defendant argued that there was error in the
introduction of testimony regarding a pretrial photographic lineup and an in-court
identification. The supreme court held: “At no time during the trial did defendant
object to the admission of the identification evidence or testimony nor was a
motion to suppress the identification filed. Thus, defendant has waived his right to
assert this assignment. C.Cr.P. 841.” Id. at 547.
In State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ
denied, 06-1285 (La. 11/22/06), 942 So.2d 553, the defendant asserted that his
convictions were based on insufficient evidence, particularly the witness’s
identification of him as the person who committed the robberies. He questioned
the witness’s identification because she allegedly told her son that the police
identified the robber. The defendant argued that this court had to determine
whether there was a suggestive identification and, if so, whether the suggestive
identification presented a substantial likelihood of misidentification. This court
held:
“A defendant who does not file a motion to suppress an identification, and who fails to contemporaneously object to the admission of the identification testimony at trial, fails to preserve the issue of its admissibility as an error on appeal.” State v. Johnson, 95- 711, pp. 3-4 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, 769, writ
8 denied, 96-0082 (La.3/29/96), 670 So.2d 1236. See also La.Code Crim.P. arts. 703(F) and 841(A). The record reveals that the defendant did not file a pre-trial motion to suppress the witnesses’ identifications or object to its admissibility at trial. Consequently, as the defendant failed to preserve this issue, we do not review it on appeal.
Id. at 440; see also State v. Mitchell, 13-426 (La.App. 3 Cir. 11/6/13), 125 So.3d 586, writ denied, 14-102 (La. 6/20/14), 141 So.3d 807.
In State v. Brumfield, 96-2667 (La. 10/20/98), 737 So.2d 660, cert. denied,
526 U.S. 1025, 119 S.Ct. 1267 (1999), the defendant argued that the trial court
should not have admitted the testimony of a store manager who survived a
shooting because her recollection of the crime and her identification of a co-
defendant as one of the assailants occurred only after she had been hypnotized by
the police. Evidence indicated that the manager was escorted to the bank by an
off-duty police officer working security detail. Immediately after the assailants
fired a barrage of shots into the police car, the co-defendant reached into the car to
get the bag of money and was face-to-face with the manager. Although the
manager had received eleven bullet wounds, she was able to drive away. When the
manager immediately reported the crime to the 911 operator, she could not
describe either of the assailants. Later, she gave a detailed description of the
assailant who reached into the car, and, at trial, she gave the jury a detailed
description of one of the perpetrators. There was no objection to the testimony or
the identification. The supreme court found that the defendant waived any claim
based on the erroneous admission of this evidence.
The defendant in the case at bar did not file a motion to suppress the
photographic line-up, did not object when the line-up was introduced as an exhibit
at trial, and did not object to the trial testimony of Assistant Chief of Police
Dewayne Brumley, of the Many Police Department, who prepared the
9 photographic lineup, or the testimony of Ms. McKinney, the victim. Accordingly,
the defendant waived review of this assignment of error.
For additional reasons, we find that the defendant’s assignment of error
lacks merit. We conclude that the evidence was sufficient to support the finding of
the trial court that the defendant was the person who committed the armed robbery.
Ms. McKinney identified the defendant as the perpetrator, both in a lineup and in
court. Additionally, still shots from video footage taken from Radio Shack and the
Housing Authority, both locations Ms. McKinney passed or stopped at while
driving with the defendant in the backseat of her car, showed Ms. McKinney’s
vehicle followed by a gray Dodge Charger, corroborating her other testimony.
A positive identification by only one witness is sufficient to support a conviction. [State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649]; See Mussall, 523 So.2d 1305, 1311 (La.1988). A victim’s or witness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Davis, 02-1043, p. 3 (La.6/27/03); 848 So.2d 557, 559. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04); 874 So.2d 66, 79.
State v. Dorsey, 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 633-34, cert. denied, 566 U.S. 930, 132 S.Ct. 1859 (2012).
The defendant argues that because there was no physical evidence presented,
the identification issue becomes of greater importance and should receive
additional scrutiny. While no DNA was found in this case and there was little
physical evidence, the parties stipulated that if Richard Beighley, an expert from
the North Louisiana Criminalistics Laboratory, was called to testify, he would state
that he did fingerprint comparisons of the defendant and three Pizza Hut
employees with the money bag and deposit slips but, due to the material from
10 which the bag and deposit slips were made, he was not able to get any “prints from
anyone, even individuals that we know touched the bag.”
Despite the lack of physical evidence, there was other evidence supporting
the victim’s identification of the defendant as the perpetrator. The defendant
denied he committed the robbery and denied that he owned or had access to a
handgun. However, despite denying involvement, the defendant offered to make
payment for the loss from the robbery when questioned by Detective Winfred
McDowell of the Natchitoches Parish Sheriff’s Department, when he was arrested
in Natchitoches on the Sabine Parish warrant. In addition, the evidence established
that approximately $3,000.00 was taken, that it was taken by force or intimidation,
and while the defendant was armed with a dangerous weapon, as clearly shown in
the victim’s testimony that she saw him, saw the gun pointed to her face, and heard
the defendant state, “Do you see this gun? I’ll shoot you.” The defendant testified
at trial, again denying his involvement. On cross examination, however, he
admitted that he had previously been convicted of the attempted armed robbery of
a Dollar General store.
The trial court clearly believed the testimony of Ms. McKinney, who
identified the defendant, and other evidence supported that decision as well. Thus,
this court cannot second-guess the trial court’s determination. Hughes, 943 So.2d
1047. Accordingly, we find that the evidence was sufficient to support the
defendant’s conviction for armed robbery.
DISPOSITION
For the foregoing reasons, the defendant’s conviction for armed robbery is
affirmed, but his conviction for aggravated kidnapping is vacated.
AFFIRMED IN PART AND VACATED IN PART.