Judgment rendered March 1, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,893-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TERRY DEWAYNE POWELL Appellant
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 21CR31625
Honorable Amy Burford McCartney, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Bruce Gerard Whittaker
TERRY DEWAYNE POWELL Pro Se
CHARLES BLAYLOCK ADAMS Counsel for Appellee District Attorney
EDWIN L. BLEWER, III LISA D. LOBRANO Assistant District Attorneys
Before COX, THOMPSON, and ROBINSON, JJ. THOMPSON, J.
Early one April morning, Terry D. Powell (“Powell”) entered a hotel
in Mansfield, Louisiana, to rob it, and while there, he fatally shot the elderly
night clerk three times. He then fled the hotel with the cash from the
register. Over an hour later, he returned to the hotel and, this time,
encountered a hotel guest standing outside. While making demands for
valuables from the hotel guest, Powell shot this second victim two times,
even though he was also fully complying with Powell’s every demand. This
victim survived his wounds. These events were captured on surveillance
video in their entirety.
Powell was subsequently arrested and convicted by a jury of the
second-degree murder and armed robbery of the hotel clerk and of the
attempted second-degree murder and attempted armed robbery of the hotel
guest. He received the maximum sentence on each count, and the trial court
ran the sentences for the crimes committed against each victim concurrently.
However, the court elected to run the second-degree murder and attempted
second-degree murder sentences consecutive to each other because the court
found that the events were separate in time and distinct in the victims.
Powell now argues that the running of those two sentences consecutively is
unconstitutionally excessive. We disagree, and for the reasons set forth
below, we affirm the defendant’s sentences, but remand for correction of the
court minutes. FACTS AND PROCEDURAL HISTORY
As captured on surveillance videos, in the early morning hours of
April 12, 2021, Powell entered and then left Snacks, a gas station next door
to a Best Western hotel in Mansfield, Louisiana, wearing a distinctive black
and red hoodie and khaki pants. Powell then walked onto the property of the
Best Western and entered the lobby. The night desk clerk, 75-year-old
Lynda Palmer (“Lynda”), was on the phone with her daughter, Latoya
Heather Palmer (“Heather”), when Powell walked into the lobby to rent a
room. They ended their phone conversation, and Heather later testified that
she expected her mother to call her back. Powell handed his identification to
Lynda in order to rent a room but, soon after, pulled out a pistol and pointed
it at her.
On surveillance video that was later played at trial, Lynda can be seen
fully cooperating and giving Powell her personal property and cash from the
register. Lynda moved to the second register to remove its cash, and even
though she was still complying with his demands and opening the second
register, Powell shot her three times in the upper torso at close range. She
collapsed backwards onto the desk chair behind her and died, all of which
was captured on surveillance video. Powell fled the Best Western lobby and
discarded the distinctive hoodie he was wearing outside in some nearby
bushes.
Approximately an hour later, Powell is again seen on surveillance
entering Snacks with Phivonta Jackson (“Jackson”) and his sister. At this
time, Powell is wearing a black t-shirt and shorts. While in the Snacks, he
bought a distinctive orange beanie, and the group then left. Thirty minutes
later, Jackson and Powell returned to Snacks, and this time Powell is 2 wearing the orange beanie and carrying a backpack with a cartoon depiction.
After a short while, Powell again left Snacks. Powell then returned to the
Best Western, retrieved his hoodie from the bushes, and re-entered the lobby
at 3:37 a.m., where Lynda’s dead body had not yet been discovered. Powell
is seen on surveillance video grabbing his ID card from the counter where
Lynda left it during his initial visit to the hotel. On surveillance video,
Powell can be seen nudging Lynda’s body and then patting her down in an
apparent attempt to locate additional valuables.
That fateful April morning, Matthew Yager (“Yager”) was a guest in
the Best Western while on business for his oil field job with Halliburton. He
had a work meeting at 4:00 a.m. the morning of Lynda’s murder and
testified that he went outside downstairs before the meeting for a cigarette.
He later testified that when he left the lobby and went outside, he was
approached by Powell, who asked him for money and the keys to a vehicle.
Yager told him that he did not have money or keys on him, and Powell
walked off. A few minutes later, Powell returned with a gun in his hand and
repeated his demands. Yager told him that he did not have keys, he was
there for work, and then he walked into the lobby for safety.
As Yager entered the hotel lobby, he looked over toward the counter
and saw Lynda’s body for the first time and realized that she was dead.
Powell followed Yager into the lobby and demanded his cell phone. Yager
complied, and as he reached for his phone, Powell shot him in the stomach.
Yager hunched over with his hands up, and Powell shot him again, this time
through his right hand and into his chest. Yager ran back up the hallway
toward the elevator bank and called 911. Powell ran out of the Best Western
3 at 3:52 a.m., this time leaving the hotel for the final time, over an hour from
when he originally fled after killing Lynda.
Police responded to Yager’s 911 call and found him in the hotel, on
the floor of the lobby and Lynda behind the counter. Yager told the police
that the perpetrator was a young, thin black man in a black jacket with a red
hoodie, armed with a revolver. Yager was taken to the hospital with
sustained severe and lasting injuries but survived the two gunshot wounds.
After a few days of hospitalization, Yager was shown a photo lineup and
identified Powell as the perpetrator. He also later identified Powell in court
at the trial.
On the morning of Lynda’s murder, her daughter, Heather, received a
text on her cell phone from an unknown number stating, “It’s your mother. I
don’t know how, but I forgot the password to my phone.” The phone
number used to send this text was later identified as belonging to Powell.
Heather replied with “R u okay?” and made other calls and texts to her
mother’s phone, with no response. She then received alerts of unusual
transactions on the credit cards that she and Lynda shared as a joint account.
Concerned, she got dressed and went to the hotel, where she saw the crime
scene tape and learned her mother had died. She provided the police with
her phone and told them about the unusual texts and alerts.
Later that day, Powell was found by police hiding in a closet at a
nearby apartment complex in Mansfield, Louisiana, and was arrested. No
weapon was found on his person, but a search of the area yielded a pistol in
a different nearby closet. The search also produced the backpack seen in the
surveillance videos, three spent .38 caliber casings, and the orange beanie
hat. The remaining .38 caliber casings, two spent and one unspent, were 4 recovered in the pistol. A health insurance card, Louisiana ID card, mobility
impaired ID card, and Visa credit card all in the name of Lynda Palmer were
found shoved into the cushions of a chair in the apartment where Powell was
located. Powell’s fingerprints were found on Lynda’s cards. Police were
able to find a Facebook photo of Powell, dated March 19, 2021, where he is
wearing what appears to be the same black and red hoodie worn the morning
of the shootings and robberies. The police also recovered Lynda’s cell
phone from Powell, where searches had been made for “how to add money
on cash app,” “how to transfer money with a credit card,” and “breaking
news Mansfield, Louisiana.” Lynda’s phone also included a search for
“Greyhound bus tickets, bus schedules and prices.”
Police recovered messages from Powell’s Instagram account stating
“I’m otw [on the way] I just pulled a murder. Meet me at a Greyhound
Station.” Another message stated, “But twin I need you to cash out a
hundred and twenty dollars so that I can get on the bus. The money I hit for,
it was on a card, but they locked her shit up now.” Another message stated,
“I went fed last night,” which a police officer later described to the jury
meant that Powell had committed a serious offense, a federal offense.
Finally, there was a message stating, “If I go, I ain’t ever getting out.”
Powell was charged with the second-degree murder of Lynda, the
attempted second-degree murder of Yager, the armed robbery with a
handgun of Lynda, and the attempted armed robbery with a handgun of
Yager. He pled not guilty on August 12, 2021. A jury trial was held on
January 24, 2022. Testimony was provided at trial by Heather and Yager. A
variety of law enforcement professionals also testified regarding the
evidence collected, witnesses interviewed, surveillance video, fingerprint 5 analysis, gun casing analysis, and DNA analysis. The various surveillance
videos were collated onto one chronological video that was time stamped,
included overlapping sound from Yager’s 911 call, and was played in its
entirety for the jury. After deliberation, the jury unanimously found Powell
guilty of all four charges.
On February 14, 2022, the trial court conducted Powell’s sentencing
hearing. The court heard testimony from Heather, who described how her
mother worked because she loved people. She described how Lynda loved
her family, especially her grandchildren, and had many years left to live.
She pled with the court to give Powell the maximum sentence and argued
even that would still not be enough for the loss she suffered. Another of
Lynda’s daughters testified, describing the emotional and physical pain she
has endured since her mother’s sudden death and requested that the trial
court sentence Powell to the maximum possible sentence. Lynda’s son
testified that he was traumatized by her death and had never seen anything
like it, even when serving in the military. He requested the court sentence
Powell to the maximum. A letter from Yager’s wife was read to the court, in
which she describes receiving a phone call from her husband at 3:56 a.m.
while he was waiting for the police and medical personnel to arrive, telling
her that he loved her, that she was his whole world, and that he had been
shot. She did not learn until 6:00 a.m. that he had survived the shooting.
She described the multiple surgeries and months of rehabilitation that Yager
has endured and continues to receive. She described the financial burden his
recovery has placed on their family, as he does not receive his full salary and
she had to take a leave of absence to be his caretaker. As a result of these
events, their lives had been turned upside down and forever altered. 6 After the witness statements, the trial court attempted to elicit
information from Powell. When asked the names of his parents, Powell at
first refused to answer and then stated that he did not know. Powell claimed
that he attended high school in a juvenile facility in Georgia but then
claimed to never have been arrested before. He argued with the court about
whether he was on probation in Georgia prior to this incident. He lied to the
court about his arrests for assault on a schoolteacher and simple burglary as
a juvenile. The record reflects Powell was combative and disrespectful of
the court and had to be removed. The court stated on the record that as he
was being removed, Powell blew kisses to the victims’ families, which the
court noted was extremely derogatory, inappropriate, and unacceptable.
False bravado was all Powell could contribute to the sentencing hearing.
The trial court stated that it considered the information presented
during trial, the statements made in court, and the applicable sentencing
guidelines in reaching its decision on sentencing. The court sentenced
Powell to life at hard labor, without benefit of parole, probation, or
suspension of sentence on the second-degree murder of Lynda, noting that
Powell should have known that the victim was particularly vulnerable or
incapable of resistance due to extreme advanced age or disability. It
sentenced Powell to 99 years at hard labor, without the benefit of parole,
probation or suspension of sentence, for the armed robbery of Lynda. These
sentences were to run concurrently with one another. Powell was then
sentenced to 50 years at hard labor for the attempted second-degree murder
of Yager and sentenced to 49½ years at hard labor for the attempted armed
robbery of Yager. The court noted that Powell created a risk or death or
great bodily harm as to both victims and used actual violence in the 7 commission of the offenses. He also committed murder and attempted to
commit murder to conceal the commission of armed robbery and attempted
armed robbery. The court noted that Powell showed deliberate cruelty to
both victims, as neither one resisted his demands.
Finally, the trial court took specific notice of the fact that the crimes
of second-degree murder and armed robbery and the crimes of attempted
second-degree murder and attempted armed robbery occurred approximately
an hour and a half apart, as captured on the surveillance videos. The court
found that there were two distinct sets of criminal activity. Considering
this, the court ordered the sentences for second-degree murder and attempted
second-degree murder to run consecutive to one another because they were
two separate crimes. It noted that a lesser sentence would deprecate the
seriousness of the crimes. Powell filed a motion to reconsider sentence,
which was denied. This appeal followed, challenging the consecutive nature
of the sentences.
DISCUSSION
In his sole assignment of error, Powell argues that his sentence was
unconstitutionally excessive, particularly that his life sentence at hard labor
for the second-degree murder of Lynda and the 50-year sentence at hard
labor for the attempted second-degree murder of Yager should not run
consecutively to each other.
Appellate review of sentences for excessiveness is a two-prong
inquiry. Under the first prong, the record must show that the trial court
considered the factors in La. C. Cr. P. art. 894.1. The primary goal of La. C.
Cr. P. art. 894.1 is for the court to articulate the factual basis for the sentence
imposed, and not simply mechanical compliance with its provisions. 8 However, if the record reflects that the trial judge adequately considered the
guidelines of the article, then he is not required to list every aggravating or
mitigating circumstance. State v. Smith, 433 So. 2d 688 (La. 1983); State v.
Sandifer, 54,103 (La. App. 2 Cir. 12/15/21), 330 So. 3d 1270; State v.
DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-
0959 (La. 5/1/17), 219 So. 3d 332.
Where the record clearly shows an adequate factual basis for the
sentence imposed, remand is unnecessary even where there has not been full
compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475
(La. 1982); Sandifer, supra. In sentencing, the important elements which
should be considered are the defendant’s personal history (age, familial ties,
marital status, health, employment record), prior criminal record, seriousness
of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.
2d 1049 (La. 1981); Sandifer, supra. There is no requirement that specific
matters be given any particular weight during sentencing. Sandifer, supra;
State v. Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ
denied, 07-0144 (La. 9/28/07), 964 So. 2d 351. As noted above, the trial
court in the present matter gave adequate consideration of La. C. Cr. P. art.
894.1 and articulated the factual basis for Powell’s sentencing. This prong
of the analysis has been satisfied.
Under the second prong of the analysis, this Court must determine
whether the sentence is unconstitutionally excessive. A sentence violates
La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of
the offense or nothing more than a purposeless and needless infliction of
pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v.
Mandigo, 48,801 (La. App. 2 Cir. 2/26/14), 136 So. 3d 292, writ denied, 14- 9 0630 (La. 10/24/14), 151 So. 3d 600. A sentence is considered grossly
disproportionate if, when the crime and punishment are viewed in light of
the harm done to society, it shocks the sense of justice. State v. Weaver, 01-
0467 (La. 1/15/02), 805 So. 2d 166; Sandifer, supra.
A trial court maintains wide discretion to sentence within the statutory
limits. Absent a showing of manifest abuse of such discretion, a sentence
will not be set aside as excessive. Upon review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Weaver, supra; State v.
Davis, 50,149 (La. App. 2 Cir. 11/18/15), 181 So. 3d 200.
As a general proposition, maximum or near-maximum sentences are
reserved for the worst offenders and the worst offenses. Sandifer, supra;
State v. Collins, 53,704 (La. App. 2 Cir. 1/13/21), 309 So. 3d 974; State v.
Cotten, 50,747 (La. App. 2 Cir. 8/10/16), 201 So. 3d 299. However, the trial
court nevertheless remains in the best position to consider the aggravating
and mitigating circumstances of a particular case and is given broad
discretion in sentencing. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d
957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L.Ed. 2d 539 (1996).
We have carefully reviewed the record in the present case, including
the entire surveillance video presented to the jury, which shows Powell
cruelly, deliberately, and without provocation or resistance murdering and
robbing 75-year-old Lynda and attempting to murder and rob Yager, both of
whom were fully complying with his every instruction. The entirety of
Powell’s crimes, captured on video, are shocking and showcase a blatant
disregard for human life. His actions at the sentencing hearing indicate his
obvious lack of remorse and, moreover, were clearly intended to further 10 harass and harm the victims of his crimes. The unprovoked shooting of an
elderly woman and an unarmed victim clearly establish him as both a
coward and one of the worst of the worst for which the legislature has made
provisions for appropriate sentencing and accountability to society. Powell
being sentenced to the maximum on all charges is both appropriate and
necessary.
Powell argues that his sentences were unconstitutionally excessive
because the trial court elected to run to his life sentence for second-degree
murder consecutively with his 50-year sentence at hard labor for attempted
second-degree murder. With respect to whether two or more sentences
should be served concurrently or consecutively, La. C. Cr. P. art. 883
provides in part:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.
(emphasis added).
Trial courts have limited discretion to order that multiple sentences
can be served concurrently or consecutively. Sandifer, supra; State v. Allen,
52,318 (La. App. 2 Cir. 11/14/18), 260 So. 3d 703; State v. Nixon, 51,319
(La. App. 2 Cir. 5/19/17), 222 So. 3d 123, writ denied, 17-0966 (La.
4/27/18), 239 So. 3d 836. Concurrent sentences that arise from a single
course of conduct are not mandatory; likewise, consecutive sentences under
those circumstances are not necessarily excessive. State v. Harris, 52,663
(La. App. 2 Cir. 8/14/19), 277 So. 3d 912; Nixon, supra; State v. Hebert,
50,163 (La. App. 2 Cir. 11/18/15), 181 So. 3d 795. However, where 11 convictions stem from separate incidents involving different victims and
occurring over a lengthy period of time, the resulting consecutive penalties
will not be found to be an abuse of discretion. State v. Bailey, 50,097 (La.
App. 2 Cir. 9/30/15), 180 So. 3d 442.
We have previously held that consecutive sentences were appropriate
when a defendant robbed a store at 12:15 a.m. and then attempted to rob
another store at 4:10 a.m. but was unable to gain entry. State v. Burns,
44,937 (La. App. 2 Cir. 2/2/10), 32 So. 3d 261. Minutes later, he returned to
the original store to commit another offense. This Court found that the three
offenses clearly did not arise out of the same transaction or occurrence and
consecutive sentences were appropriate. Id.
In the present matter, the trial court found that Powell’s crimes did not
arise from a single course of conduct. We agree. Although all four of the
crimes committed by Powell during his night of violence occurred at the
same location, they are separated into two occurrences by both the period of
time between them and the victims who were harmed. The surveillance
video is time-stamped and clearly shows Powell committing the crimes of
second-degree murder and armed robbery of Lynda at 2:02 a.m. At this
time, Powell was wearing a distinctive red and black hoodie. After
murdering and robbing Lynda, Powell leaves the Best Western and is gone
for over an hour. At 3:00 a.m., he reappears at Snacks, wearing an entirely
different outfit and buying a new hat. He does not return to the Best
Western until 3:37 a.m., and he has a chance encounter with Yager at 3:49
a.m., which results in the attempted murder and robbery of Yager.
The murder and robbery of Lynda is a separate occurrence from the
course of conduct that resulted in the attempted murder and attempted armed 12 robbery of Yager. The crimes are notably separated by both time and
victims. Powell left the scene of the crime completely and changed his
clothes between the two courses of conduct. We find that the trial court’s
decision to run his homicide convictions consecutively is entirely
appropriate in this matter. Therefore, Powell’s assignment of error is
without merit.
ERROR PATENT
Our error patent review reveals that the minutes and commitment
order do not accurately reflect the trial court’s sentencing. The transcript of
the sentencing hearing reflects that the trial court sentenced Powell as
follows: (1) to life in prison at hard labor, without the benefit of parole,
probation, or suspension of sentence for the second-degree murder of Lynda;
(2) to 50 years at hard labor without the benefit of parole, probation, or
suspension of sentence for the attempted second-degree murder of Yager;
(3) to 99 years at hard labor, without the benefit of parole, probation, or
suspension of sentence as to the armed robbery of Lynda; and (4) 49½ years
at hard labor for the attempted armed robbery of Yager. The minutes of the
sentencing hearing and the commitment order incorrectly switched the
sentences for counts two and three and incorrectly stated which counts were
to be run consecutively and which were to be run concurrently.
Where there is a discrepancy between the minutes and the transcript,
the transcript prevails. State v. Burns, 53,250 (La. App. 2 Cir. 1/15/20), 290
So. 3d 721. Therefore, we remand this matter to the trial court with
instructions to amend the minutes and the commitment order to accurately
reflect the sentences imposed in the transcript.
13 An examination of the transcript indicates that the trial court erred in
sentencing Powell with regard to his conviction for attempted armed robbery
because it failed to state that the sentence was imposed with restricted
benefits. An illegally lenient sentence may be corrected at any time by the
court that imposed the sentence or by an appellate court on review. La. C.
Cr. P. art. 882(A). This correction may be made despite the failure of either
party to raise the issue. State v. Dowles, 54,483 (La. App. 2 Cir. 5/25/22),
339 So. 3d 749. When the trial court fails to order that a sentence be served
without benefits as statutorily mandated, the sentence will be automatically
served without benefits for the requisite time period. Id. La. R.S. 14:27 and
14:64 statutorily mandate that the attempted armed robbery sentence be
served without benefits, and the trial court’s failure to declare the sentence
be served with restricted benefits is harmless and self-correcting.
CONCLUSION
For the foregoing reasons, we affirm the defendant’s sentences. The
trial court is instructed to amend the court minutes and commitment order to
correctly reflect the sentences imposed at the sentencing hearing.
SENTENCES AFFIRMED. REMANDED WITH
INSTRUCTIONS.