State v. Francois

114 So. 3d 678, 12 La.App. 3 Cir. 1438, 2013 WL 2420853, 2013 La. App. LEXIS 1119
CourtLouisiana Court of Appeal
DecidedJune 5, 2013
DocketNo. 12-1438
StatusPublished
Cited by2 cases

This text of 114 So. 3d 678 (State v. Francois) 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. Francois, 114 So. 3d 678, 12 La.App. 3 Cir. 1438, 2013 WL 2420853, 2013 La. App. LEXIS 1119 (La. Ct. App. 2013).

Opinion

PICKETT, Judge.

| .FACTS

On February 23, 2009, the defendant, Aaron Francois, and Kevin Dee Gildhouse devised a plan to commit a robbery because they needed gas money.1 They discussed robbing a store, but the defendant had never done anything like that, and he was uncomfortable with the idea. The defendant suggested they instead rob a pizza delivery man or a cab driver, and Gild-house told him to make the call. However, the defendant also said at one point the robbery was Gildhouse’s idea.

As the pair set out, Gildhouse was armed with a Taurus .357 handgun they had stolen from the defendant’s cousin, and the defendant was armed with a Taurus .38 Special a friend had given him. They first went to a Texaco station, where the defendant borrowed a cell phone and began a call to a cab company. He became embarrassed when people saw him, and he ended the call. The men then went to Wal-Mart, where they purchased cigarettes and stole gloves to prevent leaving fingerprints in the planned robbery. The defendant asked a man in the Wal-Mart parking lot if he could use his cell phone, [680]*680and the man referred him to a nearby pay phone. The defendant called a cab company and asked for a pickup at Gloria’s, a nearby bar. The defendant told Gildhouse he had done his part. He said although he intended to commit the armed robbery, he had no intent to shoot anyone.

The cab company dispatched Wallace Badeaux to pick up the defendant and Gildhouse at Gloria’s. When Mr. Badeaux stopped the cab in the parking lot at | ⅞802 Fox Run, the defendant and Gildhouse pulled their weapons on Mr. Badeaux, and the defendant told him to give them his money. Mr. Badeaux gave them about $35, and they retrieved more money from the cab’s visor, for a total of about $100. Mr. Badeaux asked them not to shoot him and told them he had a child. The defendant thought the robbery was going well, with Mr. Badeaux being totally cooperative. Gildhouse handed the money to the defendant, who put it in his pocket. The defendant then took the key to the vehicle from Mr. Badeaux, who started to cry. The defendant then put his gun in the waistband of his pants. The defendant said before he knew what was happening, Gildhouse got out of the cab and shot Mr. Badeaux in the head.

The defendant and Gildhouse ran from the cab and eventually made their way back to their vehicle, which was parked at Gloria’s. Along the way, the defendant threw the cab’s key into a field. The defendant said he was simply in the wrong place at the wrong time, and there was nothing he could do to prevent the murder. He told law enforcement “that man did not need to be shot at all.”

About a week later, Gildhouse and his girlfriend threw the murder weapon, the .357, into a coulee by the defendant’s apartment. Sergeant Guy Vizena of the Lafayette Parish Sheriffs Office testified he recovered the .357 from a canal on Cameron Street. Police recovered the cab’s key in the field exactly where the defendant told them it would be.

Sergeant Larry Brown of the Lafayette Parish Sheriffs Office testified the defendant and Gildhouse were identified by a tip from the public in late February or early March. The department’s Special Reaction Team (SRT) was called to apprehend the suspects at-the defendant’s apartment on March 1 or 2, 2009. They ^recovered a Taurus .38 Special and six .38 Special bullets from Gildhouse during the subsequent search.

Dr. Joel Carney, stipulated to be an expert in forensic pathology, testified Mr. Badeaux died from a gunshot wound to the neck. The entrance wound was on the back left side of Mr. Badeaux’s neck. Dr. Carney testified the shot was fired “from about six inches out to two to four feet.” The gunshot exited the right cheek at the back portion of the jaw. The bullet, passed through the Cl and C2 vertebrae, causing damage to the spinal cord and the brain stem, and the vertebral artery, cutting it into two segments.

Christopher Harold Henderson testified as a forensic chemist with the Acadiana Crime Lab. Forensic testimony showed the bullet introduced into evidence as Exhibit S-3 was fired from the Taurus .357 Magnum revolver introduced into evidence as Exhibit S-13G. DNA analysis showed the presence of the defendant’s DNA on a left-handed glove, and the defendant could not be excluded as the contributor of DNA found on a jacket recovered as evidence.

On February 23, 2009, a grand jury indicted the defendant and Gildhouse for the first degree murder and armed robbery of Wallace Badeaux, violations of La. R.S. 14:30 and 14:64. Trials of the co-defendants were severed by the trial court’s order of November 9, 2009. On the [681]*681state’s motion, the trial court amended the indictment on January 20, 2011, to second degree murder, a violation of La.R.S. 14:30.1(A)(2), and robbery while armed with a dangerous weapon, a violation of La.R.S. 14:64.

The defendant’s counsel admitted the armed robbery to the jury in his opening statement at trial, after stating the defendant’s agreement to that admission on the record. On August 15, 2012, the jury found the defendant guilty of second 14degree felony murder and armed robbery. The trial court sentenced the defendant on the murder conviction to mandatory life imprisonment without benefit of parole, probation, or suspension of sentence on September 13, 2012.2 The defendant appeals, arguing the murder and the underlying felony of armed robbery did not form a continuous transaction sufficient to support a conviction for felony murder.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent. Additionally, the court minutes of sentencing are in need of correction.

The defendant was convicted of second degree murder and armed robbery. As noted above, a life sentence was imposed for second degree murder. In reviewing the record to determine whether a sentence was imposed for the armed robbery conviction, we note that at the close of trial the judge indicated that in light of the jury’s finding that the second degree murder conviction was based on felony murder, she would not impose a sentence for the armed robbery conviction to avoid a double jeopardy violation. Under the particular situation presented in this case, we find there is a double jeopardy violation as error patent and set aside the conviction for armed robbery because “[t]he remedy for a double jeopardy violation for multiple punishments for the same offense is to vacate the conviction and sentence for the less severely punishable offense[.]” State v. Grace, 10-1222, pp. 14-15 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 823, writ denied, 11-961 (La.10/21/11), 73 So.3d 382 (emphasis added). As noted above, the trial court did not impose a sentence for armed robbery, but the conviction was left intact.

The defendant was originally charged with first degree murder, amended to second degree murder under the felony murder provision. The jury verdict sheet clearly indicates the jury’s second degree murder conviction was based on felony murder as opposed to specific intent. The defendant’s statement to law enforcement admitted in evidence at trial reveals that the shooting occurred during the commission of the armed robbery of Mr. Badeaux. There is no indication that any other felony offense served as the underlying felony for the second degree murder conviction.

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Cite This Page — Counsel Stack

Bluebook (online)
114 So. 3d 678, 12 La.App. 3 Cir. 1438, 2013 WL 2420853, 2013 La. App. LEXIS 1119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-francois-lactapp-2013.