State v. Briley

151 So. 3d 633, 2013 La.App. 3 Cir. 1421, 2014 La. App. LEXIS 3128, 2014 WL 4923007
CourtLouisiana Court of Appeal
DecidedOctober 1, 2014
DocketNo. 2013-KA-1421
StatusPublished
Cited by10 cases

This text of 151 So. 3d 633 (State v. Briley) 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. Briley, 151 So. 3d 633, 2013 La.App. 3 Cir. 1421, 2014 La. App. LEXIS 3128, 2014 WL 4923007 (La. Ct. App. 2014).

Opinion

JAMES F. MCKAY III, Chief Judge.

hThe defendant, Yutico Briley, appeals his convictions for count one, armed robbery with a firearm, and count three, resisting arrest. He also appeals the trial court’s denial of his motion for new trial and post judgment verdict of acquittal. Finding no error, we affirm the defendant’s conviction and sentence for resisting arrest. However, while we affirm the defendant’s conviction for armed robbery with a firearm, the record evidences an errors patent with regard to the sentencing. Therefore, we remand the matter for clarification and/or resentencing in accordance with La. R.S. 14:64.3 and La. R.S. 15:529.1.

STATEMENT OF THE CASE

On January 11, 2013, Yutico Briley (“defendant”), was charged by bill of information with count one, armed robbery with a firearm, a violation of La. R.S. 14.64.3, count two, convicted felon in possession of a firearm, a violation of La. R.S. 14:95.11, and count three, resisting arrest, a violation of La. R.S. 14:108.

On April 24, 2013, the defendant was found guilty by a twelve-person jury with respect to count one, the charge of armed robbery with a firearm. With |2regard to count three, the charge of resisting arrest, [636]*636the defendant was found guilty “by [the] judge.” On April 30, 2013, the defendant filed a motion for new trial and a motion for a post-judgment verdict of acquittal. Both motions were denied.

On May 31, 2013, the State filed a notice of information with the trial court, advising that on May 30, 2013, the State had met with the victim, Benjamin Joseph (“victim”), who had become concerned for his safety after receiving a letter from the defendant dated May 8, 2013.2

On June 17, 2013, with respect to the armed robbery with a firearm charge, the defendant was sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served, to run concurrently with the other sentences. With respect to the charge of being a convicted felon in possession of a firearm, the defendant was sentenced to twelve years at hard labor, to run concurrently with the other sentences3. With respect to the charge of resisting arrest, the defendant was sentenced to ninety days in Orleans Parish Prison, with credit for time served, to run concurrently with the other sentences.

The State filed a multiple-bill based on a prior 2011 conviction for possession of cocaine with intent to distribute. On June 24, 2013, after the ¡.¡multiple offenders hearing, the trial court adjudicated the defendant as a double offender and resen-tenced the defendant to sixty years at hard labor pursuant to La. R.S. 15:529.1, again noting that the armed robbery was a crime of violence. See La. R.S. 14:64.3.

On December 23, 2013, counsel for the defendant filed a supplemental brief. On January 27, 2014, the defendant filed a pro se supplemental brief, as well as a motion to remand the matter back to the trial court so that the court could rule on his pro se motion for new trial. On February 2, 2014, this Court remanded the matter to the trial court solely to rule on the defendant’s motion for new trial, if the court had not already done so. On April 24, 2014, after a hearing, the trial court denied the defendant’s motion for new trial. On June 11, 2014, the defendant filed a second supplemental pro se appellate brief.

STATEMENT OF FACT

On November 27, 2012, at approximately 2:15 a.m., Benjamin Joseph (“victim”) was returning to his home at 304 South Cortez Street after working as a sound recording engineer. As he exited his vehicle, he was approached at gun point by two young black males. He was robbed at gun point of his wallet which contained around $102.00 in cash. The perpetrators attempted to take his cell phone, but he threw it to the ground. After the perpe[637]*637trators fled, the victim put his cell phone back together and called 911 and reported the incident.

Later that afternoon, Detective Kellie Morel took over the investigation of the incident. She spoke to the victim who gave her a detailed description of the perpetrators. The victim described the perpetrator with the gun as a seventeen to nineteen year old male, “slim build, medium complexion, low hairstyle,” and approximately five feet ten inches tall and wearing a gray hoodie-style pullover [¿sweatshirt. He described the gun used in the robbery as a semi-automatic, black and silver pistol. He described the second perpetrator as approximately five feet eight inches tall and wearing a blue and white striped shirt.

On the evening of November 27, 2012, Officer Shelton Abram and Officer Jason Berger were assigned to proactive duty on the Task Force Unit, a unit that proactively looked for guns, drugs, violent offenders, and hot calls in progress. At approximately 5:25 p.m., they reported to work and were briefed on pertinent activity that had occurred in the district before their shift had started. They were alerted that an armed robbery had occurred around 2:00 a.m. that morning on South Cortez Street, and were provided with a description of the suspects. One of the suspects was described as a black male clad in a gray hooded sweatshirt and armed with a black and silver handgun. Officer Abram and Officer Berger observed a suspect in the 600 Block of South Pierce Street, who matched the description and was acting suspicious by “constantly looking over his shoulder” as the officers approached, and “clutching his right hip” with his right hand as he walked. The officers also observed “a bulge protrude from the right side of his hip.” As the officers “rolled up” next to the defendant, he “took off running [at a] full sprint.” The officers ultimately apprehended the defendant at approximately 8:00 to 8:30 p.m. in a vacant lot in the 600 block of South Scott Street, which is about three blocks from where the robbery had occurred and one block away from where the officers first spotted the defendant. As Officer Abram was placing the defendant in handcuffs, a black and silver handgun fell from the defendant’s pants Ifjleg. The defendant was found to be in possession of a loaded black and silver semi-automatic handgun, as well as approximately $103.00.4

At around 10:00 p.m., that same evening, the defendant was in custody at the New Orleans Police Department First District. The defendant was wearing a gray hooded sweatshirt with “a small little Polo emblem,” dark colored pants and tennis shoes.

The victim was notified by the NOPD and advised that they had a subject in custody and asked that he report to the First District Police Station on North Rampart Street; “[t]hey wanted [him] to come look at a possible suspect.” The victim was admittedly “nervous” because he feared that “the guy who pretty much threatened [his] life would see [him].” After the victim calmed down he was place in the front passenger seat of a police vehicle. The officers then conducted a show-up or one-on-one identification procedure where a spotlight was shown on the defendant so that the defendant could not see the victim sitting in the front passenger seat of the police vehicle. At the time of the identification, the defendant was handcuffed and [638]*638approximately fifteen to twenty feet away from the victim.

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Cite This Page — Counsel Stack

Bluebook (online)
151 So. 3d 633, 2013 La.App. 3 Cir. 1421, 2014 La. App. LEXIS 3128, 2014 WL 4923007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-briley-lactapp-2014.