State v. Burton

43 So. 3d 1073, 2009 La.App. 4 Cir. 0826, 2010 La. App. LEXIS 1044, 2010 WL 2780383
CourtLouisiana Court of Appeal
DecidedJuly 14, 2010
DocketNo. 2009-KA-0826
StatusPublished
Cited by23 cases

This text of 43 So. 3d 1073 (State v. Burton) 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. Burton, 43 So. 3d 1073, 2009 La.App. 4 Cir. 0826, 2010 La. App. LEXIS 1044, 2010 WL 2780383 (La. Ct. App. 2010).

Opinion

JAMES F. McKAY III, Judge.

1 TThe appellant and a codefendant were charged on June 2, 2008 with one count each of armed robbery with a firearm and attempted armed robbery with a firearm. Both men entered a not guilty plea on June 10, 2008. On January 8, 2009, the district court found probable cause and denied the motion to suppress the identification; trial was set for March 17, 2009. On that date, the State amended the bill of information as to the codefendant only to reflect that he was charged with armed robbery and attempted armed robbery, and the codefendant pled guilty as charged. The appellant proceeded to trial on count one only and was found guilty as charged. He was sentenced on March 30, 2009, to serve thirty years at hard labor, to run concurrently. The appellant’s motion for appeal was granted. The district court denied his motion for new trial on September 1, 2009.

STATEMENT OF FACT

On April 11, 2008, Nicholas Tassin and his crew were working for a builder at a house on New Orleans Street. He was in the front room of the house when he observed an African-American man with a gun approach one of his workers, who was exiting a van. The worker took off running. A second African-American man |?approached Mr. Tassin. The man entered the house, placed a gun to his head, and demanded his money or the man would “blow his brains out.” Mr. Tassin gave the man his wallet, check book, utility knife, cell phone, and cash. The man left, and Mr. Tassin saw him and the other African-American man get into a gold, four-door Buick bearing license plate number TYR009. Mr. Tassin ran back into the house and told someone to call 911. Paul Pervis made the call, and the dispatcher was provided with a description of Mr. Tassin’s assailant and the license plate number of the Buick. The assailant was described as having braids/dreadlocks and he was wearing black and white clothing and a ball cap. Mr. Tassin then went back outside where he was able to flag down a passing police vehicle. While Mr. Tassin was speaking with the officer that he flagged down, the officer received a call that two subjects had been apprehended.

Detective Mary Colon responded to the dispatch concerning the robbery. Military police, who also heard the dispatch, notified Detective Colon that they had spotted the vehicle. The military police informed her shortly thereafter that the vehicle had struck a pole and building on the corner of Urquhart and St. Roch Streets. The occupants fled the vehicle, and the military police immediately apprehended one of the men trying to climb a fence. The detective arrived at the scene as the military police were apprehending the man. The second man was apprehended approximately an hour later by police using a canine unit.

Mr. Tassin was taken to the scene where he identified the appellant as his assailant. [1076]*1076The appellant was the man apprehended by the military police. Mr. Tassin’s belongings were strewn around the area where the appellant attempted to climb the fence and were recovered by police along with the appellant’s ball cap; |s however, the gun used by the appellant was not recovered. The Buick was registered to the appellant.

ERRORS PATENT

A review of the record reveals two errors patent. First, the district court failed to sentence appellant to a mandatory additional five years imprisonment pursuant to La. R.S. M^RÍA).1 Thus the sentence is illegally lenient.

In cases where the minimum sentence was not imposed, the Second, Third, and Fifth Circuits have held that the sentences are indeterminate, requiring that the sentences be vacated and the matter remanded for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. See State v. Weaver, 38,322 (La.App. 2 Cir. 5/12/04), 873 So.2d 909; State v. McGinnis, (La.App. 3 Cir. 4/30/08), 981 So.2d 881; State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612. In light of these cases, we vacate the appellant’s sentence and remand the matter remanded for resentenc-ing.

Second, the district court failed to restrict parole eligibility as required by La. R.S. 14:64. Though the district court neglected to restrict parole eligibility on the sentence, La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction of the sentence. State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790.2

ASSIGNMENT OF ERROR NUMBER 1

|4By this assignment of error, the appellant asserts that the trial court erred by failing to rule on his motion for new trial prior to imposing sentence. Counsel has since filed a motion to dismiss this assignment; the motion was granted by this court on March 18, 2010.3

ASSIGNMENT OF ERROR NUMBER 2

By this assignment of error, the appellant asserts that the trial court abused its discretion by denying his challenge for cause of juror Ford after she admitted during voir dire that she could not be fair.

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Campbell, 2006-0286, p. 73 (La.5/21/08), 983 So.2d 810, 858; State v. [1077]*1077Leger, 2005-0011, p. 66 (La.7/10/06), 936 So.2d 108, 155. Only where it appears, upon review of the voir dire examination as a whole, that the trial court’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the defendant, will an appellate court reverse that ruling. State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108; State v. Passman, 345 So.2d 874, 880 (La.1977).

In State v. Juniors, 2003-2425, pp. 7-9 (La.6/29/05), 915 So.2d 291, 304-305, the court stated:

Louisiana Constitution article I, § 17 guarantees to a defendant the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of peremptory challenges granted a defendant in a capital case is fixed by law at twelve. LSA-C.Cr.P. art. 799. When a defendant uses all twelve of his peremptory | ^challenges, an erroneous ruling of a trial court on a challenge for cause that results in depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. -See State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686; State v. Bourque, 622 So.2d 198, 225 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and a defendant has exhausted his peremptory challenges. State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280; State v. Ross, 623 So.2d 643, 644 (La.1993). Therefore, to establish reversible error warranting reversal of a conviction and sentence, defendant need only demonstrate (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. Cross, 93-1189 at 6, 658 So.2d at 686; Bourque, 622 So.2d at 225.

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Bluebook (online)
43 So. 3d 1073, 2009 La.App. 4 Cir. 0826, 2010 La. App. LEXIS 1044, 2010 WL 2780383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burton-lactapp-2010.