STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
04-85
VERSUS
RENALDO GERARD SWEET
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 94,410 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion, Judges.
AFFIRMED.
Michael Harson District Attorney, 15th JDC P.O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 Counsel for Plaintiff/Appellee State of Louisiana
David Michael Smith Asst. District Attorney P. O. Box 3602 Lafayette, LA 70502 (337) 237-7955 Counsel for Plaintiff/Appellee State of Louisiana D. Warren Ashy P. O. Box 2515 Lafayette, LA 70502-2515 (337) 237-0000 Counsel for Defendant/Appellant Renaldo Gerard Sweet
Renaldo Gerard Sweet LaSalle Correctional Facility 15976 Hwy. 165-Dorm E Olla, LA 71465-4801 In Proper Person: Renaldo Gerard Sweet GREMILLION, Judge.
In this case, the defendant, Renaldo Gerard Sweet, was convicted of the
crime of armed robbery, in violation of La.R.S. 14:64, and was sentenced to thirty
years at hard labor without benefit of probation, parole, or suspension of sentence,
with credit for time served. Defendant now appeals his conviction and sentence. For
the following reasons, we affirm.
WEIGHT AND SUFFICIENCY OF EVIDENCE
Defendant contends that the verdict is contrary to the law because the
evidence was insufficient to convict him of armed robbery. He also claims that the
trial court erred by giving improper weight to his alibi witnesses’ testimony and the
identification by the victim.
In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.
State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ
denied, 03-2913 (La. 2/13/04), 867 So.2d 686.
Defendant was convicted of armed robbery in violation of La.R.S. 14:64.
Louisiana Revised Statute 14:64 provides: “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.” Thus, the State had to prove beyond a reasonable doubt that Defendant was
armed with a dangerous weapon when he took the victim’s car from the victim’s
1 immediate control.
At trial, Randy Girouard testified that on February 10, 2002, he attended
Mardi Gras festivities in St. Martinville and drank two half-pint bottles of Mad
Dog/20-20. He later went home and “slept it off” before going out in Lafayette later
that night. At about 10:45 p.m., he drove his car to the Mardi Gras festivities in
Lafayette. Girouard testified that he was not intoxicated at the time. While looking
for a parking spot, he saw a few guys he knew in the Hollywood Barber Shop parking
lot. He testified that he noticed an unknown man, wearing a gray hooded sweatshirt,
moving from one small crowd of people to another. He stated that he was flagged
down by an acquaintance so he parked his car and left it running with the parking
lights on. Girouard testified that he got out of his car and walked up to the group of
about four guys. He said he greeted his friend, but soon realized that something was
wrong. He said he looked back and saw the man in the hooded sweatshirt getting into
his car. Girouard testified that he ran to his car and grabbed the driver’s side door as
the man was closing it. He said he was about four feet from him when Defendant
pointed a gun in his face and told him to “back the f _ _ k up.” Girouard stated that
he moved in front of the car and asked anyone with a cellular phone to call the police.
He testified that he could have stopped Defendant if he had not had the gun.
Girouard identified Defendant in open court. He said he got a good look
at his hooded face while he was in his car. Girouard testified that he was clearly able
to see the man’s facial features again as he drove off, removed his hood, and looked
back at him.
2 While Girouard was trying to borrow a cellular phone to report the
robbery, a man from the crowd told him that the person who stole his car was Renaldo
Sweet. The man told him that he had been talking to Sweet when Girouard was on
Surrey Street, then Sweet walked over to the group of guys Girouard had stopped to
talk with. The man also told him that Sweet had gone to Acadiana High School. The
man did not want to give Girouard his name or get involved. Girouard testified that
he did not try to find the man later nor did he ask his friends for his identity.
Girouard met with the police at his house and gave them a description of
the robber. Girouard testified that he later looked in a 1997 Acadiana High School
yearbook and found a picture of Renaldo Sweet. He identified the photograph as the
same man who took his car. Girouard later identified Defendant in a photographic
lineup presented to him by the Lafayette Police Department. Girouard said he
immediately identified photograph number three as the man who robbed him.
On cross examination, Girouard stated that the Simcoe strip is very
crowded during Mardi Gras and that there are several clubs in the area. He denied
knowing that the area is the highest crime area in Lafayette. He testified that he left
his car running because he did not think anyone would take it, he knew a few of the
people in that parking lot, and he did not venture far from his car. Girouard admitted
he was far enough away from his car for someone to get into it without him realizing
it.
Regarding his identification of Defendant, Girouard stated that he saw
him clearly from a few feet away, but he did not notice any identifying marks, tattoos,
or scars on Defendant’s face. However, Defendant has two tattoos on his neck, which
3 he had at the time of this incident. He has a blood red tattoo dripping “blood” in the
middle of his throat and a tattoo reading “Raw” on the left side of his neck.
Lafayette Police Detective Brian Racca testified that when he interviewed
him, Girouard had already developed Defendant as the suspect from information he
acquired at the scene and from a high school yearbook. He testified that because the
identity of the robber was supplied by Girouard, he did not obtain a detailed
description. Eleven days later, Detective Racca showed Girouard a photographic
lineup. He testified that he did not suggest to Girouard that the individual involved
was pictured in the lineup. He stated that he only showed Girouard the one
photographic lineup and did not show him any other lineups minus Defendant’s
photograph. Girouard positively identified Defendant as the robber.
Girouard’s vehicle was later recovered in Vermilion Parish, where it had
been stripped and burned. Defendant was arrested based on a warrant Detective Racca
prepared for carjacking. He stated that the crime of carjacking was chosen based on
the information Girouard supplied to the police. Detective Racca stated that after
Defendant was arrested, he denied any involvement in the robbery.
Kendrick S. Boudreaux, a lifelong friend of Defendant, testified that he
drove Defendant to Baton Rouge on Saturday, February 9, 2002, the day before the
incident in question. He claimed that Defendant was going to visit his daughter and
her mother, Nikki. Boudreaux said he could not remember Nikki’s address or
neighborhood, and explained that Defendant had given him directions over the phone.
He testified that he dropped Defendant at Nikki’s house late Saturday night and then
drove to his girlfriend’s house in Duson. Boudreaux stated he picked up Defendant
4 at Nikki’s house in Baton Rouge late Monday night, February 11th, at approximately
1:00 a.m. He testified that Defendant did not return to Lafayette before Monday
because Defendant called him from Nikki’s house on Monday afternoon and because
he had no other ride home.
Boudreaux also stated that he learned a few weeks after Defendant was
arrested that someone had accused him of a crime. However, he stated that he did not
talk to Defendant until a few days before trial, even though Defendant had been in jail
about one year. Boudreaux explained that he had previously talked to Defendant’s
lawyer after he learned from Defendant’s mother the date of the suspected crime.
Boudreaux admitted he has a 1999 conviction of accessory to armed robbery, but
stated that he has served his time and is not on probation or parole.
Diondra Laday, another long-time friend of Defendant, testified that she
was living with Defendant’s mother at the time of the incident because she was dating
his brother. She stated that she had a phone conversation with Defendant at 11:30
p.m. on the night in question, February 10th. Laday testified that she remembered the
date because it was one day before her birthday, February 11th. She said that she
remembered asking Defendant what he was going to bring her from Baton Rouge for
her birthday the next day. She stated that when Defendant called, the caller ID box
attached to her phone showed Baton Rouge and displayed a number beginning with
the area code 225. However, she could not remember the complete phone number.
On cross examination, Laday testified that she talked to Defendant’s
mother about a week after he was arrested and learned that she might be a witness in
the case because she had talked to Defendant on February 10th. She stated that she
5 did not notify the police about this information, but instead told Defendant’s mother,
who then told his lawyer.
Elements of Armed Robbery
Defendant argues that the evidence at trial was insufficient to convict him
of armed robbery. Without conceding that he was involved in the crime, Defendant
contends that the evidence, when viewed in the light most favorable to the State, could
have sustained a conviction for nothing more than the offense of carjacking. La.R.S.
14:64.2 states, in pertinent part:
Carjacking is the intentional taking of a motor vehicle, as defined in R.S. 32:1(40), belonging to another person, in the presence of that person, or in the presence of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation.
Defendant argues that armed robbery requires a taking from the
immediate control of another and that the facts establish that Girouard was not in
control of his car while he was standing several feet away from it. He contends that
if Girouard had the immediate control of his car, no one could have gotten into it
without his knowledge. Defendant claims that the evidence supports only a charge of
carjacking, as the robber had already taken control of Girouard’s car and was in the
process of driving off when he revealed the gun.
In State v. Jones, 36,553 (La.App. 2 Cir. 1/9/03), 840 So.2d 7, writ
denied, 03-956 (La. 10/3/03), 855 So.2d 309, the second circuit resolved a similar
issue. In Jones, the victim was delivering newspapers to coin operated boxes when
he pulled up next to a box, left his engine running, and stepped a few feet away while
carrying the papers to the box. An armed robber appeared and hit the victim in the
head several times with a gun during a brief struggle. A second man appeared and
6 knocked the victim down. The two men then got into the van and drove away. The
defendant argued that the victim’s van was not in his immediate control as required
by the armed robbery statute. The court found the evidence was sufficient to prove
armed robbery even though the victim was not occupying his van at the time it was
taken.
The Louisiana Supreme Court in State v. Cooks, 97-0999, p. 28 (La.
9/9/98), 720 So.2d 637, 652, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342 (1999), has
stated:
This court has stated the immediate control requirement of the armed robbery statute is satisfied when property taken is within the presence of the owner. State v. Refuge, 300 So.2d 489 (La.1974). This court has further noted that armed robbery may occur where property taken is not in actual contact with the victim. State v. Verret, 174 La. 1059, 142 So. 688 (1932); State v. Boelyn, 432 So.2d 260, 261-262 (La.1983).
In the instant case, although Girouard testified at trial that he had walked
away from his car, he also stated that once he realized his car was being taken, he
returned to it, grabbed the open door, and tried to prevent Defendant from driving
away. It was at this point that Defendant aimed the gun at Girouard. Given these
facts, the trial court could have found that the State proved the elements of armed
robbery beyond a reasonable doubt.
Faulty Identification
Defendant also argues that the trial court erred in relying on Girouard’s
tainted and inexact identification of him as the armed robber. He claims that Girouard
had drunk two bottles of liquor that day, his name was suggested to Girouard, and that
even though Girouard allegedly got a good look at him, he never saw any tattoos.
7 Defendant cites State v. Ourso, 502 So.2d 246 (La.App. 3 Cir.), writ
denied, 505 So.2d 1138 (La.1987), for the holding that where the identity of the
perpetrator is the key issue at trial, the state has the burden of negating all reasonable
probability of misidentification. He claims that, in the instant case, there is a high
probability of misidentification because Girouard did not see the obvious tattoos on
his neck. However, Girourad’s testimony indicated that Defendant had a hood pulled
over his head during the robbery, but that he removed the hood and looked back at
him as he drove away. Moreover, there is no evidence that would show that the
tattoos were clearly visible at night considering the type of garment worn by
Defendant.
Although Defendant did not file a motion to suppress the identification,
he complains that the identification was tainted and relies on the five-factor test for
determining the admissibility of a suggestive pretrial identification. In State v.
Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056,
120 S.Ct. 1562 (2000), the supreme court stated:
In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court held that an identification may be permissible, despite the existence of a suggestive pretrial identification, if there does not exist a “very substantial likelihood of irreparable misidentification.” The factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 114, 97 S.Ct. 2243.
In the instant case, Girouard testified that he was able to see Defendant’s
8 face when he grabbed his car door and Defendant pointed a gun at him from inside the
car. He testified that he was focused on Defendant and on preventing him from
driving away with his car. Girouard stated that he was positive that Defendant was
the man who took his car. He also positively identified Defendant in a photographic
lineup eleven days after the robbery.
On the other hand, Defendant contends that Girouard’s identification was
suspect because he was drunk, it was dark, and he was at a Mardi Gras parade at the
time of the robbery. He further argues that Girouard did not see the obvious tattoos
on his neck. Despite this fact, the trial court determined that Girouard’s testimony
was credible and we will not second-guess the trial court’s credibility determinations.
Weight of Alibi Testimony
Defendant argues that the trial court failed to adequately consider the
testimony of his alibi witnesses, Boudreaux and Laday. He claims that the witnesses
established that he was in Baton Rouge when the armed robbery occurred in Lafayette
on Sunday, February 10th. Thus, he contends that the witnesses’ testimony, along
with Girouard’s questionable identification, established reasonable doubt as to his
identification.
With regard to witness testimony, we have said:
The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 452 So.2d 234 (La.App. 1 Cir.1984), writ not considered, 456 So.2d 161 (La.1984), reconsideration not considered, 458 So.2d 471 (La.1984). The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand[,] 429 So.2d 1385 (La.1982). Thus, in the absence of internal contradictions or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support
9 the requisite factual conclusion. State v. Owens, 606 So.2d 876 (La.App. 2 Cir.1992).
State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir. 1993), writ denied, 93-2774 (La.
1/13/94), 631 So.2d 1163.
A review of the record reveals that the trial court chose to believe
Girouard’s testimony over that of Defendant’s alibi witnesses. It is the role of the
factfinder to weigh the credibility of witnesses and this court should not second-guess
those credibility determinations beyond the sufficiency evaluations under the Jackson
standard of review. Accordingly, we cannot say that the trial court abused its
discretion. When viewing this evidence in the light most favorable to the State, we
find that the evidence presented at trial was sufficient to support Defendant’s
conviction of armed robbery. Therefore, these assignments of error are without merit.
EXCESSIVE SENTENCE
In his final assignment of error, Defendant contends that his sentence of
thirty years at hard labor without benefit of probation, parole, or suspension of
sentence is excessive. Although he neither objected to the length of his sentence at
his sentencing hearing nor filed a motion to reconsider sentence as required by
La.Code Crim.P. art. 881, we shall review Defendant’s sentence for constitutional
excessiveness pursuant to our decision in State v. Graves, 01-156 (La.App. 3 Cir.
10/3/01), 798 So.2d 1090, writ denied, 02-0029 (La. 10/14/02), 827 So.2d 420.
Defendant was convicted of armed robbery and sentenced to serve thirty
years at hard labor for armed robbery. He could have been sentenced to a term of
imprisonment from ten to ninety-nine years without benefit of parole, probation, or
suspension of sentence. La.R.S. 14:64. In sentencing Defendant, the trial court made
10 the following comments:
Well, this has been a hard decision for me, and I had a lot of information to look at to decide what would happen to you. I’ve reviewed the guidelines for the crime of armed robbery, and I had decided at first to give you more time than this, but in an effort to let you get out at least when you are a fairly young man, I’m going to sentence you to thirty (30) years.
The Defendant alleges that this sentence is excessive.
The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-discretion standard. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the constraints provided by law. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant's constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, under both United States and Louisiana law, a sentence is unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993).
State v. Wilturner, 03-719, p. 5 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, 746.
Although the trial court did not specifically mention Defendant’s pre-
sentence investigation report, we note that the twenty-three-year-old Defendant is a
second felony offender. In State v. Valrie, 99-226 (La.App. 3 Cir. 10/13/99), 749
So.2d 11, writ denied, 99-3236 (La. 4/20/00), 760 So.2d 343, we upheld a thirty-year
sentence for armed robbery for a second-felony defendant. Based on the Defendant’s
status as a second felony offender and this court’s ruling in Valrie, we cannot say that
the trial court abused its discretion in imposing his sentence nor can we say that the
11 sentence makes no measurable contribution to acceptable penal goals. Accordingly,
Defendant’s sentence is not excessive and this assignment of error lacks merit.
CONCLUSION
Defendant’s conviction and sentence are affirmed.