State v. Davis

596 So. 2d 358, 1992 WL 45678
CourtLouisiana Court of Appeal
DecidedMarch 13, 1992
Docket88-KA-1515
StatusPublished
Cited by12 cases

This text of 596 So. 2d 358 (State v. Davis) 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. Davis, 596 So. 2d 358, 1992 WL 45678 (La. Ct. App. 1992).

Opinion

596 So.2d 358 (1992)

STATE of Louisiana
v.
Major DAVIS.

No. 88-KA-1515.

Court of Appeal of Louisiana, Fourth Circuit.

March 13, 1992.

*360 Harry Connick, Dist. Atty., Lisa A. McLachlan, Asst. Dist. Atty., New Orleans, for plaintiff/appellee.

Geri Flaum, Student Practitioner, Darryl Derbigny, Supervising Atty., New Orleans, for defendant/appellant.

Before BARRY and CIACCIO, JJ., and BRYAN, J. Pro Tem.

TREVOR G. BRYAN, Judge Pro Tem.

On February 18, 1987 the State charged Major Davis with four counts of armed robbery, violations of R.S. 14:64 et seq. Davis pled not guilty, and on April 28, 1987, a jury found him guilty as charged on Counts 1, 3, and 4 and guilty of first degree robbery, a violation of R.S. 14:64.1, on Count 2. The trial judge sentenced Davis to twenty years at hard labor with credit for time served without benefit of probation, parole or suspension of sentence on Count 1, on Count 3 and on Count 4 and to ten years at hard labor without benefit of probation, parole or suspension of sentence on Count 2, all sentences to run consecutively.

On October 30, 1986 at about 7:30 p.m. George Angelus approached the front gate of his home on Aline Street carrying packages in his arm. A man ran in front of him, pointed a gun in his face and said "give it up" while another man went behind him and lifted his wallet from his pocket. The perpetrators took Mr. Angelus's keys and tennis racket, forced him to turn around and sit down on the ground, and then ran off.

On November 21, 1986 at about 12:40 p.m. Beryl Shaddinger arrived at work at a law firm on Louisiana Avenue. When she got out of her car, she was accosted from behind by a man with a gun while another man stood directly to her right. The man with the gun said "give me your purse." She threw her purse down. The two perpetrators ran off after gathering the items off the ground.

On December 11, 1986 at about 9:30 p.m. Mr. and Mrs. George Griswold left a party on Fourth Street and got into their car. A man approached the driver's side of the car and pointed a gun in the window. Going to the passenger's side of the car and while pointing the gun at Mrs. Griswold, he demanded Mr. Griswold's ring, watch, money clip and jewelry.

On December 24, 1986 Davis was arrested.

On January 10, 1987 the police conducted a physical line-up, which included Davis. Mr. Angelus identified Davis as the man who had held a gun to his head when he was robbed. Beryl Shaddinger identified Davis as the man who had stood next to her during the robbery while his accomplice held a gun to her and demanded her purse. Mr. Griswold identified Davis as the man who held a gun to him and robbed him and his wife.

Ruth Weaver Davis, the defendant's mother, testified, attempting to establish that Davis was not in the area where the robberies occurred. Davis also testified, denying that he committed these crimes.

A review of the record for errors patent reveals none.

In the first assignment of error, the defense contends that the trial court erred in denying its motion to sever.

C.Cr.P. art. 495.1 provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, *361 the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

Whether a motion to sever should be granted rests within the sound discretion of the trial court whose decision will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Celestine, 452 So.2d 676 (La.1984), cert. denied 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 154 (1984); State v. Stevens, 522 So.2d 1218 (La.App.4th Cir.), writ denied 524 So.2d 517 (La.1988).

Usually, "there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime." State v. Lewis, 557 So.2d 980, 984 (La.App. 4th Cir.1990), writ denied 578 So.2d 922 (La.1991); Celestine, supra.

In State v. Labuzan, 480 So.2d 420 (La. App.4th Cir.1985), this Court held that the trial court did not err in denying defendant's motion to sever for trial three counts against him for armed robbery when all three robberies occurred at night in the same area of the city within a ten-day time period. The Court noted that the jury was instructed to consider each count separately, to render a verdict on each count and had been supplied with a list of each offense and the responsive verdicts for each offense.

In Stevens, supra, this Court held that the trial court did not err in denying a motion to sever for trial two counts of aggravated rape and related charges arising out of separate incidents on successive days. This Court noted that the evidence was distinct for each incident, that it was not possible for the jury to have confused the evidence about one incident with the other one, and that the State presented all evidence on one incident the first day of trial and presented all evidence on the other incident the second day of trial.

This case involved four counts of armed robbery. Each robbery occurred in the Uptown area within a six-week period. In each, the perpetrator(s) held a gun on the victim(s) during the robbery. At trial, the investigating officer as well as the victim for each robbery testified. The facts of each case were simple. The events occurred on separate days and at different locations, the victims of which were different for each event.

It is doubtful that the jury would confuse the facts of the crimes. Further, the judge instructed the jury to consider each count separately and to render a verdict on each count. There was a separate verdict form for each count with the name of the corresponding victim on it.

Considering these factors, the trial court did not err in denying the motion to sever.

In the second assignment of error, the defense claims that the sentences imposed were excessive. The trial judge sentenced Davis to twenty years imprisonment on each of the three armed robbery convictions and to ten years imprisonment on the first degree robbery conviction. The sentences are to run consecutively.

Article 1, Section 20 of the Louisiana Constitution of 1974 provides that "No law shall subject any person.... to cruel, excessive or unusual punishment." A sentence within the statutory limit is constitutionally excessive if it is "grossly out of proportion to the severity of the crime" or is "nothing more than the purposeless imposition of pain and suffering." State v. Brogdon, 457 So.2d 616 (La.1984), cert. denied 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985); State v. Caston, 477 So.2d 868 (La.App.4th Cir.1985). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. See, State v. Quebedeaux, 424 So.2d 1009 (La.1982).

If adequate compliance with C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. *362 Brogdon, supra; State v. Brogdon, supra

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Bluebook (online)
596 So. 2d 358, 1992 WL 45678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-lactapp-1992.