State v. Clark

181 So. 3d 150, 2015 La. App. LEXIS 1888, 2015 WL 5720407
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2015
DocketNo. 50,137-KA
StatusPublished
Cited by5 cases

This text of 181 So. 3d 150 (State v. Clark) 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. Clark, 181 So. 3d 150, 2015 La. App. LEXIS 1888, 2015 WL 5720407 (La. Ct. App. 2015).

Opinion

BROWN, Chief Judge.

11Defendant, Robert L. Clark, Jr., was charged by bill of information with armed robbery with a dangerous weapon, said weapon being a firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. Following a jury trial, defendant was found guilty as charged. The trial court sentenced defendant to serve 70 years at hard labor without benefit of parole, probation or suspension of sentence for .the conviction of armed robbery. Defendant was given an additional penalty of five years at hard labor without the benefit of parole, probation or suspension of sentence for the use of a firearm in the robbery. The sentences were ordered to run conseedtively.1 Defendant now appeals, urging that the evidence was insufficient' to convict, the trial court erred in refusing to grant a mistrial, the trial court erred in not conducting a hearing on pro se motions filed by defendant, and the consecutive sentences of 70 years and five years are excessive. We affirm defendant’s conviction and sentences.

Facts

On September 2, 2011, defendant was charged by bill of information that on May 29, 2011, while armed with a dangerous weapon, a .45 caliber semi-automatic pistol, he robbed Phillip Gullo and Dillon Lopez in Bossier Parish, Louisiana, in violation of La. R.S. 14:64. The bill was amended On February 1, 2013, to add the Best Value Minn-Mart, LLC. (referred to | ^.throughout the trial and herein as “Emerson’s Grocery”) as a victim, and to specifically charge defendant under both La. R.S. 14:64 and 14:64.3.

In the afternoon of May 29, 2011, a man wearing sunglasses, a dark long-sleeved shirt,-gloves and'a cap came into Emerson’s Grocery armed' with-a pistol. He fired a round between the two clerks, Phillip Gullo and Dillon Lopez. He then demanded “all the money.” Gullo and Lopez complied, emptying two registers. The man was not satisfied, telling them, “I know ya’ll cash" checks here, give me the rest of the money.' Where’s the real money at?” At that time, Gullo opened up the third drawer, took the money from it, and put it into the bag. The man then instructed Gullo and Lopez to go to the back. When Gullo and Lopez got to the back room, they locked the door, and Gullo phoned the sheriffs department. Gullo gave officers a description of the suspect as a light-skinned black male wearing a yellow ball cap with a fleur de lis on it, black sunglasses, black gloves, a brown long-sleeved shirt, black pants and duck boots. Gullo also described the suspect as being between six feet to six feet two [154]*154inches tall and weighing approximately 180 pounds. Gullo testified that the man who robbed him ran into the woods toward the Fillmore Cemetery. The store manager determined that the amount of the money taken was $6,400. The store had surveillance cameras and a video of the robbery was introduced into evidence at defendant’s trial, which was held on April 16-19, 2013.

Sufficiency Of The Evidence

Under the Jackson v. Virginia standard, due process requires that no person be made to suffer the onus of a criminal conviction except upon sufficient proof, defined as evidence necessary to convince a trier of fact beyond reasonable doubt of the existence of every element of the offense. Appellate courts review the record in the light most favorable to the prosecution to determine whether the evi dence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979); State v. Tate, 01-1668 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide an appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165.

In this case, there is no question that an armed robbery with the use of a firearm occurred. At the trial in this matter, the state proved beyond a reasonable doubt that $6,400 was taken from the two clerks at Emerson’s Grocery. Both Gullo and Lopez testified that they emptied money from registers at Emerson’s Grocery into a bag. Angela Gullo, manager of Emerson’s Grocery, testified that the amount of loss was $6,400. The state also proved that the robber used force or intimidation by pointing the gun at the store clerks while demanding money and firing a round between them; this bullet and a shell casing were recovered from the scene. The video of the robbery clearly shows a firearm being used. Evidence established that | ¿the firearm was a .45 caliber Sig Sauer pistol. Thus the elements of armed robbery with the additional penalty for the use of a firearm were clearly met.

The issue in this case is the identity of defendant as the perpetrator of the crimes. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047. Positive identification by only one witness is sufficient to support a conviction. Id. It is the factfinder who weighs the respective credibilities of the witnesses, and a reviewing court will generally not second-guess those determinations. Id.

On the day of the robbery, the officers were unable to locate the perpetrator. To determine who the robber was, deputies went through cell phone tower dumps to try to locate people who had made calls in the area during that time. They also reached out to the media by playing the surveillance video on every news station and running ads in the newspaper and The Inquisitor with still shots from the surveillance footage. Approximately two months after these efforts, the Bossier Parish Sheriffs Department received an anonymous call, which ultimately led to the arrest of defendant, Robert L. Clark, Jr.

[155]*155After viewing the footage of the robbery, several people'identified defendant as the perpetrator. Both store clerks identified defendant in open court as the person who robbed them. After the robbery, Gullo testified that he was shown photographs of four black males. He was unable to identify any of them as the person who robbed him. He did note that one of the mén |fihad similar features to the person that robbed him. That person was not defendant. Gullo identified defendant in open court as the man who robbed Emerson’s Grocery. Gullo further explained that although the man had on a ball cap and, sunglasses, he recognized that defendant had the same facial features as the robber. Specifically, Gullo pointéd out defendant’s jawline, nose, and ears. He was a “hundred percent” sure that defendant was the person who robbed him.

Shortly after the robbery, Lopez picked a suspect out from a six-person photo array and identified him as the robber. This person was also a light-skinned black man who had ears and bone structure similar to defendant. ' The man identified in the photo array was not defendant. Lopez testified that the police had not shown him any images of defendant, but he had seen images in the media of defendant.

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Related

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Bluebook (online)
181 So. 3d 150, 2015 La. App. LEXIS 1888, 2015 WL 5720407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-lactapp-2015.