State v. Holmes

653 So. 2d 642, 1995 WL 107099
CourtLouisiana Court of Appeal
DecidedMarch 15, 1995
Docket94-KA-907
StatusPublished
Cited by40 cases

This text of 653 So. 2d 642 (State v. Holmes) 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. Holmes, 653 So. 2d 642, 1995 WL 107099 (La. Ct. App. 1995).

Opinion

653 So.2d 642 (1995)

STATE of Louisiana,
v.
Gregory HOLMES.

No. 94-KA-907.

Court of Appeal of Louisiana, Fifth Circuit.

March 15, 1995.

John M. Mamoulides, Dist. Atty., Terry M. Boudreaux, Asst. Dist. Atty., Louise Korns, of counsel, Office of the Dist. Atty., Gretna, for plaintiff-appellee.

Linda Davis-Short, Staff Appellate Counsel, Indigent Defender Bd., Gretna, for defendant-appellant.

Before KLIEBERT, BOWES and GAUDIN, JJ.

*643 KLIEBERT, Chief Judge.

Defendant, Gregory Holmes, appeals his conviction and sentence on charges of two counts of armed robbery, a violation of LSA-R.S. 14:64, and one count of attempted first degree murder, a violation of LSA-R.S. 14:27 and 14:30. He was sentenced to 99 years at hard labor without benefit of parole, probation, or suspension of sentence on each armed robbery conviction and fifty years at hard labor on the attempted first degree murder conviction. All three sentences were ordered to run concurrently, Defendant was given credit for time served. For the reasons which follow, we affirm the armed robbery convictions and sentences; vacate the attempted first degree murder conviction and sentence; and instruct the trial court to comply with La.-C.Cr.P. art. 930.8.

The facts elicited at trial follow:

At about 4:00 A.M. on September 25, 1993, two young white men, Barrett Holley and George Cook, entered the Danny and Clyde's convenience store on Terry Parkway in Gretna, The two were on their way home after having spent several hours in the French Quarter celebrating Mr. Holley's birthday. Mr. Holley testified that he had consumed five or six alcoholic beverages between midnight and four o'clock that morning. Mr. Cook testified that he had had three to four beers.

Mr. Cook testified that he had been in the store on a number of occasions and that he recognized the employees who were working there that morning. Cook and Holley went to the store's sandwich counter and Cook ordered a sandwich from employee Stephanie Lambert. While Ms. Lambert prepared the order, she and Mr. Cook talked and joked with one another.

Three black males, Shawn White, Bryan James, and defendant, Gregory Holmes, arrived at Danny and Clyde's at about the same time as Mr. Cook and Mr. Holley did. They were accompanied by two women, and the group had just left a nightclub. They had been drinking and using drugs since the previous evening. Mr. Cook and Mr. Holley testified that all three black males entered the store. However, Cynthia Edwards, the cashier on duty that morning, testified that two black males entered the store. Shawn White testified that only he and Brian James went into the store, while defendant waited in the car.

While waiting to place his order at the sandwich counter, Shawn White began to argue with Mr. Cook. White accused him of using offensive language and racial slurs with Ms. Lambert, whom White referred to as his "sister." Ms. Lambert told White that Cook was not bothering her, and that she was not White's sister. There ensued an argument between White and Cook, during which White poured beer over Cook's head.

Cook paid the cashier for his sandwich, then he and Holley exited the store. Holley went to Cook's car in the parking lot and got in on the passenger side. Cook opened the driver's side door and put his sandwich on the seat, then was again accosted by White. White hit Cook, and Cook in turn hit White.[1] There was a physical altercation between White and Cook and they were quickly joined by Bryan James and defendant.

White's female companion eventually persuaded White to stop fighting. White and James walked toward their car, leaving defendant at the scene of the fight. Cook testified that he was hit on the head with a bottle by someone he could not see, and he fell to his hands and knees. Cook heard a gunshot, then realized a bullet had entered his back and exited through his abdomen. Mr. Holley, as well as defendant himself, testified that defendant shot Mr. Cook. Defendant took both Cook's and Holley's wallets at gunpoint, then he and his companions left the scene in a car. Mr. Holley described the car as an early 1980's model Ford LTD or Cougar, tan in color. Holley noted that the last three numbers of the car's license plate were 715.

Mr. Holley helped Mr. Cook into the store. Cook laid on the floor, then lost consciousness. *644 Ms. Edwards, the cashier, called police. Deputy Robert Allen of the Jefferson Parish Sheriff's Department reported to the scene, where he took statements from witnesses.

While investigating an unrelated homicide, Sergeant Curtis Snow of the Jefferson Parish Sheriff's Department received information from a confidential source regarding the September 25 shooting and armed robberies. The homicide Sgt. Snow was investigating had occurred in close proximity to Danny and Clyde's and involved Bryan James, Gregory Holmes and Shawn White. The car used in the homicide was a 1976 Ford Thunderbird with license plate number 578N715. Sgt. Snow passed this information on to robbery detective David Yenari.

Detective Yenari compiled photographic lineups of both Gregory Holmes and Shawn White. He was unable to assemble a photo lineup of Bryan James due to the fact that there was no booking photograph of James available. The detective testified that he showed Mr. Cook and Mr. Holley the two photographic lineups. Both victims were able to identify Shawn White, although neither was able to make a photo identification of defendant.

Detective Yenari obtained an arrest warrant for Shawn White. Detectives Yenari and Giron executed the warrant at White's residence in Bridge City. They saw parked at the house a white and orange Ford Thunderbird automobile. The last three numbers of the license plate were 715. After the officers placed White under arrest, they found in his pocket a set of keys fitting the car.

On the evening of White's arrest, Detective Yenari received word that defendant was at the Jefferson Parish Correctional Center and wanted to turn himself in for the robberies and shooting at Danny and Clyde's. Yenari met with defendant at the correctional center and apprised him of his rights. Defendant gave a taped statement, in which he confessed to the shooting and the robberies, and was placed under arrest. Bryan James was later arrested at his residence in Westwego.

George Cook testified that the injuries he sustained due to the shooting included spleen damage, the removal of twelve feet of intestine, and permanent scars. He was hospitalized for seven or eight days, and was confined to bed for about six weeks. As of the time of trial, Cook was still under a doctor's care.

Defendant's appellate counsel alleges the following errors were committed in the trial court:

1. Trial counsel was ineffective in the following respects: Failing to Object (sic) to the State's erroneous recitation of the elements of the charge of attempted first degree murder during State's voir dire. Failing to Object (sic) to the State's erroneous recitation of the elemtsn (sic) of attempted first degree murder during state's opening statement (sic) The defense counsel referred to an erroneous element of the crime in his opening statement (sic) Failing to Object (sic) to the State's errorneous (sic) reference to an element of the crime during defense closing statement (sic) Failing to Object (sic) to the Court's Instructions regarding the elements of the offense of Attempted First Degree Murder (sic).
2.

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Cite This Page — Counsel Stack

Bluebook (online)
653 So. 2d 642, 1995 WL 107099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holmes-lactapp-1995.