State v. Hernandez-Zuniga

81 So. 3d 129, 11 La.App. 5 Cir. 378, 2011 La. App. LEXIS 1527, 2011 WL 6187087
CourtLouisiana Court of Appeal
DecidedDecember 13, 2011
DocketNo. 11-KA-378
StatusPublished
Cited by5 cases

This text of 81 So. 3d 129 (State v. Hernandez-Zuniga) 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. Hernandez-Zuniga, 81 So. 3d 129, 11 La.App. 5 Cir. 378, 2011 La. App. LEXIS 1527, 2011 WL 6187087 (La. Ct. App. 2011).

Opinion

SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges his conviction and sentence for armed robbery. For the following reasons, we affirm his conviction and sentence.

Facts and Procedural History

Dreams Communications, located at 3226 Williams Boulevard, is a retail store specializing in cellular telephone equipment, international money transfers, and check cashing. On January 29, 2010, Carlos Liriano, the owner of Dreams Communications, and Cicelea Torres, one of his employees, were leaving the store for the night after closing.

Liriano was carrying a backpack containing approximately $60,000 in cash, which he planned to deposit at his bank that night. Liriano locked the door to the business and turned to help Torres move the garbage bin to the street when three men appeared from “right under the stairs” of his building. Two men grabbed Torres and a third man grabbed Liriano.

Liriano testified at trial that an individual “came from right under the stairs,” grabbed him, and put a gun to his neck. He stated that, as he was being pushed toward the alleyway, the individual grabbed his backpack then hit him with a gun. | ..¡Torres testified that one of the men pressed a gun against her body as two men pushed her towards the alleyway.

Liriano believed their lives were in danger so he withdrew his firearm and shot the armed man that grabbed him and one of the other suspects.1 Liriano kept watch for the third perpetrator and called the police.

[131]*131Ms. Torres stated that she heard gunshots then opened her eyes to see that one of the robbers was dead in the alleyway. When she turned around, she saw another of the robbers lying on the ground next to her. As she watched him, he took off his mask and start speaking into his phone.

On January 29, 2010, Officer Jeff Mock-lin of the Kenner Police Department responded to a call for service at Dreams Communications. Upon arrival, Officer Mocklin saw a Hispanic male speaking frantically to another police officer while “waiving around a black pistol.” After the officers secured the man’s sidearm, the man reported that three men had attempted to rob him at gunpoint. The robbery victim stated that he shot two of them, but the third one got away.

When Officer Mocklin approached the entrance of the alleyway where the incident occurred, he observed a Hispanic male lying on the ground with several gunshot wounds, “pretty much on his last breath.” Officer Mocklin observed that the wounded man still held a gun, which Officer Mocklin moved out of the man’s reach. Officer Mocklin secured the alleyway, left other officers at the scene, and went to investigate a call from dispatch that a Hispanic male wearing a sweatshirt, who fit the description of the third suspect, was seen running approximately two blocks away. After stopping the individual in question, Officer Mocklin concluded that he was not the third suspect.

|,(Detective Joseph McRae of the Kenner Police Department became the lead investigator on this case. After Detective McRae arrived on the scene at approximately 9 p.m., he determined that three individuals perpetrated the crime: Angel Hernandez, German Hernandez-Zuniga (hereinafter, “defendant”), and a third unidentified individual. At that point, Angel Hernandez had died from his gunshot wounds and the third perpetrator had escaped.2

More importantly to this matter, defendant had been arrested and was being transported via ambulance for medical care for his gunshot wounds. At trial, Detective McRae identified defendant as the same individual that the emergency medical technicians were treating for gunshot wounds on the night of the incident. He further testified that defendant had a mask in his possession when he was taken into custody that evening.

At trial, defendant testified that, on the day of the incident, he had a painting job, which had been cancelled due to the rain. He admitted that he was carrying a painter’s mask because he had placed a painter’s mask in the pocket of his pants for his job, just in case the rain stopped.

Defendant admitted that he walked to Dreams Communications that evening. He stated that he wanted to buy a phone card, but the store was closed when he arrived. He stated that he then heard voices and wanted to see if anyone needed help. When he walked closer, he heard gunshots. When he started to run from the gunshots, he was shot twice in the back. After he was shot, he attempted to call his girlfriend from his phone.

|sHe also admitted that he knew Angel Hernandez and Manuel Quintero because they had worked together as painters on [132]*132two or three prior occasions. He stated that the phone records reflected that they had called him that day to ask about work that day. Although defendant admitted that he was the individual who had been shot and taken to the hospital, he denied participating in the robbery or wearing a mask.

On April 14, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, German A. Hernandez-Zuniga, with one count of armed robbery in violation of La. R.S. 14:64. Defendant proceeded to trial on July 20, 2010. After a two-day trial, a twelve-person jury found defendant guilty as charged. On August 16, 2010, the trial court denied defendant’s motion for new trial and sentenced him to 35 years imprisonment without benefit of parole, probation or suspension of sentence after defendant waived sentencing delays. Defendant filed a motion to reconsider sentence, which the trial court denied. This timely appeal follows.

Law and Analysis

In his only pro se and his first counseled assignment of error, defendant argues that the evidence is insufficient to uphold the conviction. Defendant specifically argues that the State failed to present sufficient proof that he was involved in the commission of the armed robbery. Defendant contends that he was “in the wrong place at the wrong time,” was mistakenly shot by a victim of the armed robbery, and incorrectly identified as one of the perpetrators.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the lacrime beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted).

Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. “Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722.

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Bluebook (online)
81 So. 3d 129, 11 La.App. 5 Cir. 378, 2011 La. App. LEXIS 1527, 2011 WL 6187087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-zuniga-lactapp-2011.