NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2 NUMBER 2023 KA 0137
VERSUS
TABVIS LAVEL WILLIAMS
Judgment Rendered: SEP 15 2023
Appealed from the Thirty -Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket Number 761979 The Honorable Timothy C. Ellender, Jr, Judge Presiding
Joseph L. Waitz, Jr. Counsel for Appellee District Attorney State of Louisiana Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana
Bertha M. Hillman Counsel for Defendant/ Appellant Covington, Louisiana Tabvis Lavel Williams
BEFORE: GUIDRY, C.J., CHUTZ AND LANIER, JJ. GUIDRY, C.J.
The defendant, Tabvis Lavcl Williams, was charged by bill of information'
with armed robbery with a firearm on count one, a violation of La. R. S. 14: 64 and
La. R. S. 14: 64. 3, and with aggravated assault with a firearm on count two, a
violation of La. R. S. 14: 37. 4, and pled not guilty. After a trial by jury, the
defendant was found guilty as charged on both counts by unanimous verdicts. The
State filed a habitual offender bill of information, and the defendant was later
adjudicated a fourth or subsequent felony habitual offender, pursuant to La. R.S.
15: 529. 1. 2 On count one, the defendant was sentenced to ninety-nine years
imprisonment at hard labor without the benefit of probation, parole, or suspension
of sentence; and to an additional five years imprisonment at hard labor without the
benefit of probation, parole, or suspension of sentence, for the firearm
enhancement of La. R.S. 14: 64. 3, to be served consecutively to the ninety -nine-
year sentence. On count two, the defendant was sentenced to twenty years
imprisonment at hard labor, to be served concurrent to count one. The defendant
now appeals, assigning error to the denial of his motion to suppress identification
from a six -person photographic lineup. For the following reasons, we affirm the
convictions, habitual offender adjudications, and sentences.
This case is a retrial. On count two, the defendant was originally charged with second degree murder by an amended bill of information. After the first trial, the defendant was found guilty as charged on count one and guilty of the responsive o5ense of aggravated assault with a firearm on count two. On March 11, 2021, after the defendant was originally adjudicated a habitual offender and sentenced, the trial court granted an amended motion for new trial filed by the defendant, and vacated the habitual offender adjudication and sentencing. On July 13, 2022, the day of the new trial, the State filed a bill of information amending the charge on count two to aggravated assault with a firearm. 2 After the new trial, the State filed a habitual offender bill of information listing both of the instant offenses. After the adjudication, enhanced sentences were imposed on both counts. The habitual offender adjudication is based on a 1996 conviction of distribution of cocaine, 1996 and 2005 convictions of possession of cocaine, a 1996 conviction of simple burglary, and a 2012 conviction of possession of a firearm by a convicted felon.
2 STATEMENT OF FACTS
On the night of September 13, 2017, officers of the Terrebonne Parish
Sheriff' s Office ( TPSO) responded to the scene of an armed robbery that occurred
at a convenience store, Dularge Express, between 5: 30 and 9: 00 p.m. Hai Trung
Nguyen and Patricia Dinh, who owned, operated, and resided at the store, testified
at trial. While Nguyen was in a separate room in the back of the store and Dinh
was behind the register, a male wearing a mask entered the store, approached the
counter with a gun, pointed the gun at Dinh, and said, "[ g] ive me all your money."
Despite the mask, Dinh recognized the gunman as a regular customer and thought
it was a joke.
As the gunman then fired the gun to the side of Dinh, she realized he was
serious and began nervously pressing buttons to open the register. Nguyen heard
the noise and came back to the front of the store, at which point the individual
pointed the gun at him and said, "[ w]hat' s up mother f*****?" Nguyen
recognized the gunman' s voice. The perpetrator then fired at Nguyen. Nguyen
immediately grabbed their daughter, who had walked out of her bedroom to see
what was happening, and took her to the back of the store. Dinh gave the gunman
a stack of one dollar bills from the register, and he ran out of the store. Dinh
locked the door and called the police.
The next day, on September 14, 2017, a confidential informant implicated
the defendant in the robbery. Detective Jason Pellegrin then conducted a
photographic lineup at the store, and Nguyen, who was present at the time,
identified the defendant as the perpetrator. Nguyen and Dinh further identified the
defendant as the perpetrator at trial.
3 ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant avers that the trial court erred
in denying the motion to suppress his identification in a six -person photographic
lineup. The defendant argues that the lineup was defective because Nguyen' s
attention was naturally drawn to the only person known to him in the lineup. The
defendant argues Nguyen recognized him in the lineup as a regular customer, not
as the perpetrator, whose face was covered by a mask.
DISCUSSION
The defendant' s motion to suppress the photographic lineup, the denial of
which is the subject of this appeal, was filed prior to the original trial in this matter
by the defendant' s then trial counsel. The judge presiding over the case at the time
held a hearing, denied the motion, and proceeded to the original trial.
Subsequently, the defendant filed an amended motion for new trial pursuant to
Ramos v. Louisiana, U.S. , 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020). The
currently presiding judge granted the amended motion for new trial and vacated the
original habitual offender adjudication and sentencing.
At the new trial, the defendant did not object to the admission of the
photographic lineup or related testimony, nor did he refile or re -urge his motion to
suppress. Rather, he is now seeking review of the motion filed, and ruling thereon,
in the prior trial.
Louisiana Code of Criminal Procedure article 857 provides that "[ t] he
effect of granting a new trial is to set aside the verdict or judgment and to permit
retrial of the case with as little prejudice to either party as if it had never been
tried." Official Revision Comment ( a) to the article clarifies that La. C. Cr.P. art.
857 " continues the sound rule of Art. 515 of the 1925 Code of Criminal Procedure,
that the slate is wiped clean when a new trial is granted."
4 This concept of granting the defendant a " clean slate" at a new trial has
been consistently repeated throughout Louisiana jurisprudence. See State v.
Graham, 375 So. 2d 374 ( La. 1979) ( per curiam); State v. Lee, 346 So. 2d 682, 684
La. 1977). In accordance with the concept that a new trial provides a defendant
with a clean slate, when a new trial is granted, both the State and the defendant
may seek to introduce new evidence not previously introduced at the defendant' s
first trial.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2 NUMBER 2023 KA 0137
VERSUS
TABVIS LAVEL WILLIAMS
Judgment Rendered: SEP 15 2023
Appealed from the Thirty -Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket Number 761979 The Honorable Timothy C. Ellender, Jr, Judge Presiding
Joseph L. Waitz, Jr. Counsel for Appellee District Attorney State of Louisiana Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana
Bertha M. Hillman Counsel for Defendant/ Appellant Covington, Louisiana Tabvis Lavel Williams
BEFORE: GUIDRY, C.J., CHUTZ AND LANIER, JJ. GUIDRY, C.J.
The defendant, Tabvis Lavcl Williams, was charged by bill of information'
with armed robbery with a firearm on count one, a violation of La. R. S. 14: 64 and
La. R. S. 14: 64. 3, and with aggravated assault with a firearm on count two, a
violation of La. R. S. 14: 37. 4, and pled not guilty. After a trial by jury, the
defendant was found guilty as charged on both counts by unanimous verdicts. The
State filed a habitual offender bill of information, and the defendant was later
adjudicated a fourth or subsequent felony habitual offender, pursuant to La. R.S.
15: 529. 1. 2 On count one, the defendant was sentenced to ninety-nine years
imprisonment at hard labor without the benefit of probation, parole, or suspension
of sentence; and to an additional five years imprisonment at hard labor without the
benefit of probation, parole, or suspension of sentence, for the firearm
enhancement of La. R.S. 14: 64. 3, to be served consecutively to the ninety -nine-
year sentence. On count two, the defendant was sentenced to twenty years
imprisonment at hard labor, to be served concurrent to count one. The defendant
now appeals, assigning error to the denial of his motion to suppress identification
from a six -person photographic lineup. For the following reasons, we affirm the
convictions, habitual offender adjudications, and sentences.
This case is a retrial. On count two, the defendant was originally charged with second degree murder by an amended bill of information. After the first trial, the defendant was found guilty as charged on count one and guilty of the responsive o5ense of aggravated assault with a firearm on count two. On March 11, 2021, after the defendant was originally adjudicated a habitual offender and sentenced, the trial court granted an amended motion for new trial filed by the defendant, and vacated the habitual offender adjudication and sentencing. On July 13, 2022, the day of the new trial, the State filed a bill of information amending the charge on count two to aggravated assault with a firearm. 2 After the new trial, the State filed a habitual offender bill of information listing both of the instant offenses. After the adjudication, enhanced sentences were imposed on both counts. The habitual offender adjudication is based on a 1996 conviction of distribution of cocaine, 1996 and 2005 convictions of possession of cocaine, a 1996 conviction of simple burglary, and a 2012 conviction of possession of a firearm by a convicted felon.
2 STATEMENT OF FACTS
On the night of September 13, 2017, officers of the Terrebonne Parish
Sheriff' s Office ( TPSO) responded to the scene of an armed robbery that occurred
at a convenience store, Dularge Express, between 5: 30 and 9: 00 p.m. Hai Trung
Nguyen and Patricia Dinh, who owned, operated, and resided at the store, testified
at trial. While Nguyen was in a separate room in the back of the store and Dinh
was behind the register, a male wearing a mask entered the store, approached the
counter with a gun, pointed the gun at Dinh, and said, "[ g] ive me all your money."
Despite the mask, Dinh recognized the gunman as a regular customer and thought
it was a joke.
As the gunman then fired the gun to the side of Dinh, she realized he was
serious and began nervously pressing buttons to open the register. Nguyen heard
the noise and came back to the front of the store, at which point the individual
pointed the gun at him and said, "[ w]hat' s up mother f*****?" Nguyen
recognized the gunman' s voice. The perpetrator then fired at Nguyen. Nguyen
immediately grabbed their daughter, who had walked out of her bedroom to see
what was happening, and took her to the back of the store. Dinh gave the gunman
a stack of one dollar bills from the register, and he ran out of the store. Dinh
locked the door and called the police.
The next day, on September 14, 2017, a confidential informant implicated
the defendant in the robbery. Detective Jason Pellegrin then conducted a
photographic lineup at the store, and Nguyen, who was present at the time,
identified the defendant as the perpetrator. Nguyen and Dinh further identified the
defendant as the perpetrator at trial.
3 ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant avers that the trial court erred
in denying the motion to suppress his identification in a six -person photographic
lineup. The defendant argues that the lineup was defective because Nguyen' s
attention was naturally drawn to the only person known to him in the lineup. The
defendant argues Nguyen recognized him in the lineup as a regular customer, not
as the perpetrator, whose face was covered by a mask.
DISCUSSION
The defendant' s motion to suppress the photographic lineup, the denial of
which is the subject of this appeal, was filed prior to the original trial in this matter
by the defendant' s then trial counsel. The judge presiding over the case at the time
held a hearing, denied the motion, and proceeded to the original trial.
Subsequently, the defendant filed an amended motion for new trial pursuant to
Ramos v. Louisiana, U.S. , 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020). The
currently presiding judge granted the amended motion for new trial and vacated the
original habitual offender adjudication and sentencing.
At the new trial, the defendant did not object to the admission of the
photographic lineup or related testimony, nor did he refile or re -urge his motion to
suppress. Rather, he is now seeking review of the motion filed, and ruling thereon,
in the prior trial.
Louisiana Code of Criminal Procedure article 857 provides that "[ t] he
effect of granting a new trial is to set aside the verdict or judgment and to permit
retrial of the case with as little prejudice to either party as if it had never been
tried." Official Revision Comment ( a) to the article clarifies that La. C. Cr.P. art.
857 " continues the sound rule of Art. 515 of the 1925 Code of Criminal Procedure,
that the slate is wiped clean when a new trial is granted."
4 This concept of granting the defendant a " clean slate" at a new trial has
been consistently repeated throughout Louisiana jurisprudence. See State v.
Graham, 375 So. 2d 374 ( La. 1979) ( per curiam); State v. Lee, 346 So. 2d 682, 684
La. 1977). In accordance with the concept that a new trial provides a defendant
with a clean slate, when a new trial is granted, both the State and the defendant
may seek to introduce new evidence not previously introduced at the defendant' s
first trial. See Graham, 375 So. 2d at 374; State v. Acevedo, 21- 164 ( La. App. 5th
Cir. 5119121), 325 So. 3d 1117, 1120.
As either party may seek to introduce new evidence in a second trial, it
follows that certain pretrial evidentiary motions and rulings may be necessary.
Further, a court is not bound by a prior pretrial ruling or judgment rendered in
connection with a previous trial when a new trial is granted. Thus, the instant trial
was a new and separate trial, not a later stage of the prior trial. Therefore, the " lain
of the case" doctrine does not apply. See Acevedo at 1120- 21, supra ( granting, in
part, a writ of review, in holding that relator therein may relitigate pretrial matters
after his original conviction and sentence were vacated pursuant to Ramos; but,
declining to hold all pretrial proceedings or rulings void as a matter of law).
In accordance with the above, when a new trial is granted, a party may seek
to limit in a new trial evidence previously admitted in the prior trial by refiling or
re -urging a motion to suppress filed and denied in a prior case. State v. Alridge,
22- 0245 ( La. App. 4th Cir. 5118122), 340 So. 3d 1188, writ denied, 22- 00964 ( La.
917122), 345 So. 3d 427 ( wherein the defendant, on remand after being granted a
new trial pursuant to Ramos, properly preserved the issue by filing a motion to
reopen the suppression of his identification, the trial court granted the motion, the
State filed a writ of review, and the appellate court reversed, finding the lineup was
not unduly suggestive); State v. Langley, 10- 969 ( La. App. 3d Cir. 416111), 61 So.
3d 747, 769- 79, writ denied, 11- 1226 ( La. 1120112), 78 So. 3d 139, cert. denied,
5 568 U.S. 841, 1. 33 S. Ct. 148, 184 L.Ed.2d 73 ( 2012) ( wherein the defendant, at the
third trial for the same murder, after two previous convictions were vacated,
properly preserved the issue by filing a renewed motion to suppress statements and
evidence seized upon his arrest, the trial court denied the motion after a hearing
thereon, and the appellate court reviewed and upheld the trial court' s ruling).
Herein, the defendant failed to refile or re -urge his motion to suppress after
he was granted a new trial and further failed to object to the admission of the
evidence during the instant trial. Accordingly, this argument has not been
preserved for appeal and is not properly before this court. La. C. Cr.P. arts. 703 &
841; State v. Moody, 00- 0886 ( La. App. 1st Cir. 12/ 22/ 00), 779 So. 2d 4, 7- 8, writ
denied, 01- 0213 ( La. 12/ 7/ 01), 803 So. 2d 40 ( a defendant who fails to file a
motion to suppress identification, and who fails to object at trial to the admission
of the identification testimony, waives the right to assert the issue on appeal);
Langley, 61 So. 3d at 780 ( finding the issue not properly preserved wherein the
defendant, at the third trial, failed to re -urge a motion to suppress his videotaped
statement filed and denied in his second trial). The defendant has waived his right
to assert this assignment of error and, accordingly, the assignment of error is
without merit.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCES AFFIRMED.