State v. Everett

761 So. 2d 58, 98 La.App. 4 Cir. 2156, 2000 La. App. LEXIS 1253, 2000 WL 675953
CourtLouisiana Court of Appeal
DecidedApril 12, 2000
DocketNo. 98-KA-2156
StatusPublished

This text of 761 So. 2d 58 (State v. Everett) 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. Everett, 761 So. 2d 58, 98 La.App. 4 Cir. 2156, 2000 La. App. LEXIS 1253, 2000 WL 675953 (La. Ct. App. 2000).

Opinion

LANDRIEU, Judge.

Defendant, Michael S. Everett, was charged with one count of armed robbery and one count of attempted first degree robbery. The trial court found probable cause and denied defendant’s motion to suppress the identification, motion to suppress evidence and motion to suppress his statement. Following trial, the jury found the defendant guilty of first degree robbery as to count one, and guilty of at[59]*59tempted first degree robbery, as charged, in count two.

The State filed a multiple bill charging the defendant as a triple offender. Following a hearing, the trial court adjudicated the defendant as a triple offender and sentenced him to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appeals his convictions and sentence.

STATEMENT OF THE FACTS

At about 8:80 a.m. on July 1,1995, at the Texaco gas station on General DeGaulle Drive in Algiers, a subject entered the store and asked the cashier, Vonalee Hence, if the store carried cigarettes. Hence replied that it did, but that cigarettes could be purchased more cheaply at Delchamps. The subject responded that it was not coming out of his pocket. A female customer then walked into the store. The subject told the cashier to go ahead and wait on her, that he was not in a hurry. After the customer left, the subject asked for three cartons of cigarettes, Kools, Winstons and Camels. The cashier leaned down to get the cigarettes. When he straightened up, he saw that the subject had a gun underneath a towel. The subject told the cashier, “Give them up. And, hurry up, and don’t make me bust you up.” The subject then took the cigarettes, left the store and fled on a bicycle.

Hence immediately reported the incident to the police. When the responding officer arrived, Hence told him what had occurred. Hence particularly noted that the perpetrator had a gold tooth in the front of his mouth and was wearing silver-rimmed glasses. The officer also obtained the surveillance videotape that recorded the incident.

A week later at the same store, at about 5:00 a.m., Jeffery McEleen was the cashier on duty. When the subject arrived at the store, the store was locked because McE-leen was stocking the outside beer cooler. The subject told McEleen that he wanted something out of the store. McEleen advised him to come back in about fifteen or twenty minutes. When the subject came back, McEleen locked the cooler and went back into the store. The subject then put his hand on his stomach and said, “This is a robbery. I want four cartons of cigarettes.” McEleen asked if he wanted any special kind. The subject responded, “Don’t be cute. I’ll blow your F-ing head off.” When McEleen picked up a whole case of cigarettes, the subject threatened him again.

McEleen then began throwing the cigarette cartons out at the subject. The third carton fell off the counter. When the subject looked down, McEleen pulled his own weapon. McEleen had a weapon, uniform and handcuffs for his second job, as a security officer for the Housing Authority of New Orleans. He went to his HANO job immediately after his Texaco job, so he had his uniform and other equipment with him. When the subject saw McEleen with the gun, he passed out. When the subject came to he tried to run out, but McEleen grabbed him, dragged him back into the store, and cuffed him. The subject was sitting on a chair when the police arrived.

Officer Eric Carr and his partner arrested the defendant following the July 8 incident. Carr seized the defendant’s bicycle and eyeglasses in connection with the incident. On the way to Central Lock-up, the defendant told Carr that he was an addict and would do whatever he had to do to get money.

Det. Cyril Davalier was doing a followup investigation of the July 1 robbery when he heard about the July 8 robbery at the same location. He noted that both offenses involved an attempt to conceal a weapon with a towel. He retrieved the videotape of the July 1 robbery from which he made some still photos. He then got the Bureau of Identification photo of the defendant taken in connection with the arrest following the July 8 incident. Dava-lier compared the photos and suspected that it was the same person involved in both cases. He then compiled a set of [60]*60photos, which included the Bureau of Identification photo of the defendant. On July 15, Davalier met Hence at the gas station. Hence selected the photo of the defendant as the one who perpetrated the July 1 robbery. When he picked the defendant’s photo, Hence mentioned that it was the robber, but that he did not have on his glasses. None of the subjects in the lineup photos had on eyeglasses.

In addition to the testimony of the officers and the cashiers, the jury also viewed the videotape of the July 1 robbery. The eyeglasses and the various photos were also admitted into evidence and shown to the jury.

ERRORS PATENT REVIEW

A review of the record for errors patent reveals one. The trial court failed to sentence the defendant on count two, the attempted first degree robbery. The multiple bill of information designates the first degree robbery conviction as the one which was to be enhanced. Thus, the court’s finding that the defendant was a triple offender and the court’s imposition of the life sentence applied to that conviction. However, the case must be remanded to the trial court for sentencing on count two.

There were no other patent errors.1

ASSIGNMENT OF ERROR ONE-BY COUNSEL

The defendant argues that the evidence was insufficient to sustain the convictions for first degree robbery and attempted first degree robbery because neither of the victims believed that he was armed with a dangerous weapon.

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). Either direct or circumstantial evidence may prove the essential elements of the crime. With circumstantial evidence the rule is: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This rule is not a separate test from the review standard established by Jackson v. Virginia, but rather it is an evidentiary guideline which facilitates appellate review of the sufficiency of the evidence. State v. Jacobs, 504 So.2d 817, 820 (La.1987). Ultimately, to support a conviction, the evidence, whether direct or circumstantial or both, must be sufficient under Jackson to satisfy any rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton, 436 So.2d 471 (La.1983). Specific intent may be inferred from circumstances and the defendant’s actions. State v. Smith, 94-2588 (La.App. 4 Cir. 3/27/96), 672 So.2d 1034. Credibility determinations are within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

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Related

Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Jacobs
504 So. 2d 817 (Supreme Court of Louisiana, 1987)
State v. Shelton
621 So. 2d 769 (Supreme Court of Louisiana, 1993)
State v. Sutton
436 So. 2d 471 (Supreme Court of Louisiana, 1983)
State v. Vessell
450 So. 2d 938 (Supreme Court of Louisiana, 1984)
State v. Smith
672 So. 2d 1034 (Louisiana Court of Appeal, 1996)

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Bluebook (online)
761 So. 2d 58, 98 La.App. 4 Cir. 2156, 2000 La. App. LEXIS 1253, 2000 WL 675953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-everett-lactapp-2000.