State v. Allen

677 So. 2d 709, 1996 WL 375020
CourtLouisiana Court of Appeal
DecidedJune 28, 1996
Docket95 KA 1515
StatusPublished
Cited by11 cases

This text of 677 So. 2d 709 (State v. Allen) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Allen, 677 So. 2d 709, 1996 WL 375020 (La. Ct. App. 1996).

Opinion

677 So.2d 709 (1996)

STATE of Louisiana
v.
Willie ALLEN, Jr.

No. 95 KA 1515.

Court of Appeal of Louisiana, First Circuit.

June 28, 1996.
Rehearing Denied August 19, 1996.

*711 Doug Moreau, District Attorney, Baton Rouge, Tracey Ewing, Asst. District Attorney, Baton Rouge, for Appellee, State.

Edward Greenlee, Baton Rouge, for Defendant/Appellant, Willie Allen, Jr.

Before LeBLANC, WHIPPLE and FOGG, JJ.

LeBLANC, Judge.

Defendant, Willie Allen, Jr., was charged by bill of information with three counts of armed robbery (counts one, two and four) and one count of first degree robbery (count three), violations of La.R.S. 14:64 and 64.1, respectively. After trial by jury, defendant was convicted as charged on all counts. For each of the armed robbery convictions, defendant received a sentence of thirty years at hard labor; and for the first degree robbery conviction, the court imposed a sentence of twenty years at hard labor. The court credited defendant with time served and imposed all four sentences without benefit of parole, probation or suspension of sentence. The court further ordered that the armed robbery sentences run concurrently with each other but consecutively to the first degree robbery sentence. Defendant appeals, urging six assignments of error. Assignments of error numbers one, two and three were expressly abandoned in brief and will not be considered.

All four offenses occurred in East Baton Rouge Parish in September of 1993. Counts one and two occurred at a Circle K convenience store outside the city limits of Baton Rouge. Counts three and four occurred inside the city limits, at another Circle K convenience store and a Texaco Service Station, respectively. In each instance, the victim was the store clerk who was on duty at the time of the crime. A summary of the facts relating to the crimes follows.

The count one offense occurred at about 1:46 a.m. on September 9. A black male entered the store and asked L.B. Mize, the victim, if he had any garbage bags. Mize answered in the affirmative and pointed out the item to the man. The man picked up a box of the bags. Mize proceeded about his work. In the meantime, the man removed one of the bags from the box, placed the bag on the counter and told Mize to put cigarettes and money in the bag. When the man's "clothes opened," Mize saw a revolver that was "stuck in [the man's] belt." The perpetrator told Mize he did not want to shoot him. Mize placed cigarettes and about $25.00-30.00 in the bag. The robber took the bag and left. Mize was unable to identify the *712 perpetrator. However, the police lifted three latent fingerprints from the box of bags that the robber opened and left in the store. Defendant's left thumbprint was identified as matching one of the latent prints.

At about 3:15 a.m. on September 16, Darren Wallace, the count two victim, was putting up stock when a black male came into the store where he was working and asked for a pack of Kool cigarettes. When Wallace went to the counter to get the cigarettes, the man put a nine millimeter pistol in Wallace's face; and using very derogatory language ordered Wallace to get on the floor. Wallace complied. However, when the perpetrator was unable to open the cash register, again using very derogatory language, he directed Wallace to open the cash register. Wallace got up, opened the cash register, removed money from the cash register, placed the money on the counter and got back on the floor. At the time Wallace got up to open the cash register, he observed that there was also a Caucasian male in the store and that this other individual was in the process of removing liquor from the store. After the perpetrators left, Wallace observed a black Mustang being driven away. During a pretrial photo lineup, Wallace identified defendant as the black male perpetrator; he also made an in-court identification of defendant at the trial.

At shortly after 1:00 a.m. on September 24, two black men entered the store where Peggy Moore, the count three victim, was working. One of the men, who was wearing slippers, picked up a box of trash bags, opened the box and removed one of the bags as he walked toward Moore. The other man said nothing and only stood during the incident. The man who was wearing the slippers told Moore he wanted her to put all the cigarettes into the bag. She initially just looked at him. He told her it was a robbery and to do as he had previously stated. When Moore leaned down to place the cigarettes in the bag, the man told Moore to comply as fast as she could and that he did not want to hurt her. At that time, he "patted his side," causing Moore to believe he had a weapon (a gun), although she did not see a gun. Moore placed the cigarettes in the bag and handed it over to the man. The robber then told Moore to open the cash register. Moore complied, and the man took approximately $30.00 from the cash drawer. The two men left the store together. On the day after the robbery, Moore viewed a photographic lineup from which she identified defendant as the man who robbed her. She also identified defendant in court at the trial.

Just before midnight on September 30, 1993, a black man came into the Texaco station where Janice Towns Von Hoffburg, the count four victim, was working. When he entered, the man asked Von Hoffburg for a pack of Kool cigarettes and a cigarette lighter. She retrieved the cigarettes and lighter. The man pulled up his shirt, allowing her to see a revolver in his waistband. The man told Von Hoffburg to open the cash register and kept telling her to hurry up. She handed him $45.00. As he was about to go out the door, he told her to give him three lottery tickets, which she did. At trial, the victim identified defendant in court as the robber. Additionally, a videotape from one of two surveillance cameras in the store was played for the jury. Von Hoffburg testified that the videotape accurately reflected what happened to her at the Texaco Station. Baton Rouge City Police Officer William D. Denicola testified that he knows defendant and that he recognized defendant on the videotape.

ASSIGNMENT OF ERROR NO. FOUR:

In this assignment, defendant contends the court erred by denying his motion to quash for misjoinder and, alternatively, his motion to sever. Defendant asserts "[t]he effect of joinder in this case was to allow the State to strengthen four weak cases by having before the jury evidence of other crimes which would not have been admissible if the offenses had been tried separately." Defendant also claims that his conviction on count one (on the basis of the alleged insufficiency of the circumstantial evidence presented) strongly indicated the jury made an improper inference of his disposition to commit the instant crimes and used the evidence from the other three crimes in finding him guilty on count one. In conclusion, defendant *713 states that the prejudicial effect of joinder demands a severance of the instant offenses for separate trials.

La.C.Cr.P. art. 493 allows joinder of two or more offenses if the offenses are of the "same or similar character" and are triable by the same mode of trial. The offenses at issue in this case, three armed robberies and a first degree robbery, are of a similar character and are triable by the same mode of trial (a jury composed of twelve jurors, ten of whom must concur to render a verdict). See La.C.Cr.P. art. 782. Thus, joinder of these robbery counts in a single bill of information was proper. See State v. Gaines, 633 So.2d 293, 297 (La.App. 1st Cir.1993), writ denied, 93-3164 (La.

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Cite This Page — Counsel Stack

Bluebook (online)
677 So. 2d 709, 1996 WL 375020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-allen-lactapp-1996.