State v. Harris

518 So. 2d 590, 1987 WL 3122
Louisiana Court of Appeal·Decided December 22, 1987·No. KA/87/0603·Published·Cited by 7 cases

Opinion

518 So.2d 590 (1987)

STATE of Louisiana
v.
Gremel HARRIS.

No. KA/87/0603.

Court of Appeal of Louisiana, First Circuit.

December 22, 1987.
Writ Denied April 4, 1988.

*592 Bryan Bush, Dist. Atty., Baton Rouge by Leila Withers, Asst. Dist. Atty., for plaintiff/appellee.

M. Michele Founet, Appellate Counsel, Public Defender's Office, Baton Rouge, for defendant/appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

EDWARDS, Judge.

Gremel Harris was convicted of one count of armed robbery and one count of attempted armed robbery and sentenced to ninety-nine years at hard labor for the armed robbery conviction and a concurrent forty-nine and one-half years at hard labor for the attempted armed robbery conviction.[1] Defendant appealed, alleging twenty-eight assignments of error. Because, however, he briefed only eight, the remaining twenty are considered abandoned. Uniform Rules —Courts of Appeal, Rule 2-12.4.

FACTS

Clara Jones, the bartender at a Baton Rouge lounge, testified that she saw defendant, whom she did not know, enter the bar, and that Earl Crum, one of the customers, addressed defendant as "Jap." Defendant then went outside, and returned almost immediately with two other men, all three of them carrying guns. According to Ms. Jones, one of the men said, "This is a hold up," one jumped behind the bar and emptied the register of about $7,500.00, and defendant took Ms. Jones' wallet from her purse and removed $35.00 cash. The robbers also took Earl Crum's wallet, though it contained no money; an unidentified customer's watch; and a small pistol that was kept behind the counter. Defendant was arrested approximately two days later, and he was convicted of the armed robbery of Clara Jones and the attempted armed robbery of Earl Crum.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that the state failed to establish his identity as one of the perpetrators, and therefore that the evidence was insufficient for a conviction.[2] Ms. Jones positively identified defendant as one of the three robbers, testifying that she clearly remembered his face because of her fear during the incident.

Earl Crum testified that he and defendant had attended school together for approximately four years. He related that he was seated in the bar when he saw defendant *593 walk inside, that he recognized defendant immediately and called to him by his nickname, "Jap," but that defendant did not speak to him. Then realizing that he was in danger because defendant knew Crum could identify him, Crum said that he watched the activity behind the bar and avoided looking at defendant throughout the robbery. Nonetheless he was positive in his identification of defendant as one of the perpetrators.

Steve Follins testified that he went into the bar with defendant and Kent, and that he heard someone call defendant by his nickname when they entered the lounge. According to Follins, he stood at the door while one of the others took the money from the register, and another took the money from the bartender's purse. Follins further related that he had pled guilty to the offense and received a ten-year sentence.

For the defense, Margie Tony, who said she lived with defendant in a "common law" relationship, testified that, on April 19, 1982, the date of the offense, she and her three children went fishing with defendant, his mother, and another man whose name she did not know. She testified that they fished from approximately 7:00 a.m. until approximately 8:00 p.m., when they returned to defendant's mother's house, prepared and ate the fish, and stayed together until approximately 1:00 a.m. She initially claimed that she recalled the specific date because her children were out of school for the Easter holidays, but later said that she kept the children home from school on that date to take them fishing, their vacation having been the previous week.

Corroborating Ms. Tony's testimony, defendant's mother related that the group went fishing on that date because her mother had been particularly anxious to go. Aside from the addition of defendant's grandmother, Mrs. Harris' list of the members of the fishing party was the same as Ms. Tony's. Mrs. Harris, however, specifically disclaimed the possibility that defendant and Ms. Tony shared a common law relationship, saying that they were merely friends. According to Mrs. Harris, defendant lived with his grandmother. Essentially the same alibi testimony was given by defendant's grandmother and the mother of his ex-wife.

Defendant likewise testified that he was on a fishing trip with his mother, grandmother, Ms. Tony and her three children on the day of the robbery. Though he admitted that he was acquainted with Earl Crum, he claimed that Crum fabricated the robbery story because defendant had not paid him for some marijuana exchanged the day before. He explained Steve Follins' testimony by saying that Follins believed defendant was involved with one of his girlfriends. Defendant claimed that Ms. Jones was lying in her identification of him.

The standard of review for sufficiency of the evidence is whether any reasonable trier of fact could find that the evidence, viewed in the light most favorable to the prosecution, is sufficient to establish the elements of the offense beyond a reasonable doubt. LSA-C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). The state presented the testimony of two victims, both of whom positively identified him as one of the perpetrators. Defendant admitted that he had been acquainted with one of the victims for a considerable length of time. An accomplice testified that defendant participated in the robbery with him. Although defendant presented an alibi defense, the testimony of his witnesses was, on occasion, contradictory. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Kennedy, 494 So.2d 550 (La.App. 1st Cir.), cert. denied, 495 So.2d 290 (La.1986). We find, therefore, that any rational trier of fact could have found the evidence presented by the state to be more credible than that presented by defendant. This assignment of error has no merit.

REFUSAL TO REPLAY TESTIMONY

Defendant claims that the trial court erred by denying his request to listen to the taped testimony of Earl Crum. While *594 admitting that he has no absolute right to review the testimony, he claims that the court's denial of his request compromised his right to present the best defense possible.

Article 843 of the Code of Criminal Procedure provides for the recordation of all proceedings in felony cases, but the purpose of this requirement is to enable a party to support assignments of error on appellate review. See LSA-C.Cr.P. art. 843, comment (c); see also State v. Robinson, 387 So.2d 1143 (La.1980). The trial court is not required to recess court proceedings to permit a party to review testimony already provided, especially where the request is apparently made for informational purposes only. Defendant did not request that the witness be recalled for further examination, and he does not even now allege a specific manner in which the review of this testimony could have been helpful.

Matters pertaining to the conduct of trial are within the sound discretion of the trial court. LSA-C.Cr.P. art. 17; State v. Williams, 442 So.2d 740 (La.App. 1st Cir. 1983). The trial court did not abuse its discretion by refusing to permit defendant to review the testimony of a witness while the trial was still proceeding.

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