State v. Chisolm

771 So. 2d 205, 2000 WL 1483333
CourtLouisiana Court of Appeal
DecidedSeptember 27, 2000
Docket99-KA-1055
StatusPublished
Cited by13 cases

This text of 771 So. 2d 205 (State v. Chisolm) 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. Chisolm, 771 So. 2d 205, 2000 WL 1483333 (La. Ct. App. 2000).

Opinion

771 So.2d 205 (2000)

STATE of Louisiana
v.
Beatrice CHISOLM & Herbert Estes.

No. 99-KA-1055.

Court of Appeal of Louisiana, Fourth Circuit.

September 27, 2000.

*208 Karen Godail, Louisiana Appellate Project, River Ridge, LA, Attorney for Beatrice Chisolm.

Kevin V. Boshea, Williams & Boshea, L.L.C., New Orleans, LA, Attorney for Herbert Estes.

Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, LA, Attorneys for State of Louisiana.

Court composed of Chief Judge ROBERT J. KLEES, Judge WILLIAM H. BYRNES, III, and Judge MIRIAM G. WALTZER.

WALTZER, Judge.

Defendants, Beatrice Chisolm and Herbert Estes, appeal their convictions for first degree robbery and their adjudication as fourth felony offenders and their sentences to life imprisonment.

STATEMENT OF THE CASE

On 23 July 1996, appellants Beatrice Chisolm and Herbert Estes were charged by bill of information with two counts, each, of armed robbery. At a pre-trial hearing, the trial court found probable cause and denied the motions to suppress evidence and identifications. A trial on 7 January 1998 ended in a mistrial. On 18 March 1998, the appellants were retried on count two and found guilty of the lesser offense of first-degree robbery. On 2 April 1998, the State entered a nolle prosequi as to count one as to both appellants. On 31 July 1998, the appellants' motions for new trial were denied. The trial court then sentenced each appellant to forty years at hard labor without benefit of probation, parole or suspension of sentence. On 29 January 1999, Chisolm was found to be a fourth offender and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. On 9 April 1999, following the denial of a motion to quash the multiple bill, Estes was also found to be a fourth offender and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

STATEMENT OF THE FACTS

Around 4:00 p.m. on 8 May 1996, Frank Bradley went to the Club Savoy, a bar near his home. From that time until about midnight, he consumed six or seven beers. As he went toward his vehicle to leave, a female subsequently identified as appellant, Beatrice Chisolm, approached him and struck up a conversation. While she was talking to him, Bradley noticed someone, whom he observed only as a silhouette, enter his vehicle and remove his gun from the car seat. After that, a male subsequently identified as appellant, Herbert Estes, approached and said he knew who took the gun and would get it back for him.

The three of them left the bar in Bradley's vehicle. Bradley let Estes drive because he said he knew the area where the person who took the gun resided. After Estes made two stops with no luck, Bradley told Estes to drive him home, and he would report the gun as missing.

When they got to the house, Bradley invited them in. They had a few more drinks and listened to some music. During this time, Bradley and Estes stayed in the living room. Chisolm went to the bathroom several times. After about an hour, Chisolm and Estes left. Bradley did not know how they got home.

Bradley awoke about 9:00 a.m. on 9 May 1996 and was unable to find the keys to his house and car. He walked to a nearby filling station for cigarettes. When he got back, he saw Estes and Chisolm in his driveway. He noticed an unfamiliar vehicle parked directly across from his house. *209 Bradley told Estes and Chisolm that his keys were missing. Estes replied that he knew where they were. He stated that they were in the bathroom. Bradley said he never keeps his keys there. Estes then went into the bathroom and came out with the keys. Although Estes showed Bradley the keys after coming out of the bathroom, Bradley maintained that they were not in the bathroom when he looked for them that morning.

Estes then mentioned that he was still working on getting Bradley's gun back, but it would cost him. Bradley offered ten dollars. Estes said he would need more money. Bradley then walked into the kitchen. Estes walked behind him and put a knife to Bradley's side. Estes then told Bradley to give him everything he had. Estes took Bradley's watch, cigarettes and seventeen dollars. Chisolm, who was also in the kitchen, told Estes to make Bradley lie down in the bedroom, which he did.

When Estes took Bradley to the bedroom, he told Bradley that he knew there was more in the house, and he intended to find it. Bradley remained in the bedroom until everything was quiet outside. After he got up, he noticed that he was also missing his television set, two VCRs, earrings purchased for his grandchildren, and between eighty and one hundred dollars in change.

Bradley called the police to report the incident. Because the perpetrators were no longer on the scene and no one was in danger, the police responded with a cold call, meaning that it was not a priority. Officer Lizelle Brooks responded at about 3:00 that afternoon. She did not obtain descriptions of the perpetrators, except that they were one male and one female, both black, and about twenty-nine or thirty years old. She also noted that Bradley stated with certainty that he could identify the perpetrators if he saw them.

Officer Louis Martinez followed up on the case. On 21 May 1996, he presented Bradley with two photographic lineups, one which included Chisolm and the other Estes. Bradley immediately and positively picked out the suspects.

ERRORS PATENT

A review of the record indicates that the trial court originally sentenced the appellants immediately following the motion for new trial, without observing the twenty-four hour delay prescribed by LSA-C.Cr.P. art. 873, or obtaining a waiver of the delay by the appellants.[1] However, this error is harmless because the original sentence as to each appellant was vacated when the trial court re-sentenced each one as a multiple offender.

SUFFICIENCY OF THE EVIDENCE— CHISOLM AND ESTES

Both appellants claim that the evidence is insufficient to sustain the verdict, among other assignments of error. When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731 (La.1992).

The standard of appellate review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is to consider the record as a whole, not just the evidence favorable to *210 the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict will be upheld. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Either direct or circumstantial evidence may prove the essential elements of the crime.

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Bluebook (online)
771 So. 2d 205, 2000 WL 1483333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chisolm-lactapp-2000.