State v. Johnson

887 So. 2d 751, 2004 WL 2659121
Louisiana Court of Appeal·Decided November 23, 2004·No. 38,927-KA·Published·Cited by 21 cases

Opinion

887 So.2d 751 (2004)

STATE of Louisiana, Appellee,
v.
Melvin Lynn JOHNSON, Jr., Appellant.

No. 38,927-KA.

Court of Appeal of Louisiana, Second Circuit.

November 23, 2004.

*753 Kenota Pulliam Johnson, for Appellant.

Melvin Lynn Johnson, Jr., pro se.

Paul J. Carmouche, District Attorney, Laura O. Wingate, Ron C. Stamps, J. Thomas Butler, Assistant District Attorneys, for Appellee.

Before WILLIAMS, PEATROSS and MOORE, JJ.

WILLIAMS, Judge.

The defendant, Melvin Lynn Johnson, Jr., was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. After a jury trial, the defendant was found guilty as charged. The trial court adjudicated defendant a third felony offender and imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. *754 Defendant's motions for post-verdict judgment of acquittal, new trial and reconsideration of sentence were denied. Defendant appeals his conviction and adjudication as a third felony offender. We affirm the conviction. However, we set aside the habitual offender adjudication and remand.

FACTS

Shortly before 10:00 a.m. on December 31, 2002, the House of Brass, a clothing and jewelry store in Shreveport, was robbed by a masked individual who was carrying a shotgun and wearing dark clothing. Sherry Pollard, a store employee, testified that she was near the front of the store when she looked up and saw a person wearing a mask like the one used in the movie Scream. The individual pointed a shotgun at her face and told her to cooperate so that no one would get hurt. He then ordered Pollard and two other employees to face the wall. The robber demanded money and Pollard handed him an amount of approximately $180 to $190 from the cash register.

At that point, a female customer entered the store and the assailant ordered her to get down. When the customer hesitated, the assailant hit her with his elbow. The robber then told Pollard he wanted more money and she went to the cash register in another part of the store, but could not open the cash drawer. She ran toward the back of the store and left the building with three other employees. They ran next door to call 911. At trial, Pollard identified the mask and shotgun as items used during the robbery.

A co-worker, Beverly Martin, testified that when she heard the robber yelling, she ran to the back of the store and told another employee to call the police. Martin said Pollard, who had run to the back area, was hysterical and was concerned about getting more money for the robber to keep him from killing anyone. Martin said that she told the others they should leave and that the police were driving up as they went next door.

Stephanie Woods, the store manager, testified that she was in the accountant's office near the back of the store when she heard a male yelling and demanding money. Woods stated that the accountant called 911 and that they waited inside several minutes until the police arrived. Woods testified that the store opened every morning with $200 in the cash register.

Michael Greber, an officer with the Shreveport Police Department, testified that he and other officers arrived at the scene of the robbery within two to three minutes and set up a perimeter around the store. Acting on information from Detective Oster that the robber had just gone over the cinder block wall approximately 75 feet behind the store, Greber climbed to the top of the wall and looked over. He saw a black man lying on the ground wearing a black coat and holding a shotgun by his side. Greber stated that his gun was pointed at the suspect, who aimed the shotgun at him. Greber jumped down and shouted "gun" to warn the other officers.

Robert Rivet, the officer who apprehended the suspect, testified that he was walking to Albert Street to set a perimeter when he saw a man who matched the suspect's description run from between two houses. Officer Rivet pursued the fleeing suspect, who ran out of sight around the corner of a house. Rivet entered the yard of the residence, looked around and found the suspect lying on the ground near the house with his hands underneath him. Rivet pulled the suspect away from the house and observed a Scream mask and shotgun on the ground where the suspect had been hiding. Rivet identified the defendant in court as the *755 person taken into custody and testified that the mask and shotgun were those found on the ground.

Shreveport Police Officer Paul Vines testified that when he arrived, Rivet and another officer were trying to subdue the defendant. Officer Vines handcuffed defendant and conducted a pat-down search of his person. Vines stated that he found $188 in cash and a set of keys in defendant's coat pocket. Vines also saw a Scream mask and shotgun at the scene.

Tom Oster, a Shreveport Police investigator, was driving past the store when the robbery was reported. As he turned into the store's driveway several women came out of the building and ran past him to a business next door. He testified that another woman then ran out and told him that the armed robber wore a mask and was still inside. Oster stated that one of the officers around the building reported that the suspect was running out of the back door and that he was dressed in black and carried a shotgun.

Oster drove around to a church parking lot behind the store and saw that the area was enclosed by a cinder block wall. He noticed a car that was parked in the corner of the lot closest to the store. Oster testified he later learned that the car belonged to the defendant. Oster then saw a woman standing on the back porch of a nearby business. She mouthed the words "he's right there" and pointed to the other side of the wall. Oster said he stood on top of the car and looked over as two officers climbed the wall. They jumped down and one officer yelled that the suspect held a gun.

Oster watched as the suspect, a black male with braids in his hair, dressed in a long black coat and holding a gun, began running through a back yard toward Albert Avenue. Oster reported this information over his radio and within two minutes he heard officer Rivet respond that the suspect was in custody. Oster testified that the 911 call came in at 9:49 a.m. and the radio report that defendant was in custody was recorded at 9:58 a.m.

Oster stated that during the initial interview at the police station, the defendant was angry and upset and did not want to answer any questions. Oster testified that at a subsequent interview, defendant said that he had driven a friend to the area of the store and parked in the adjacent parking lot. Defendant told Oster that the friend was gone for several minutes and when he returned to the car, he handed defendant the shotgun, the mask and the money and changed clothes with the defendant before running away. Defendant stated that he ran when he heard the police sirens and refused to give the name of his friend. Defendant was charged with armed robbery.

A unanimous jury found the defendant guilty as charged. The trial court adjudicated defendant a third felony offender and imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant's motions for post-verdict judgment of acquittal, new trial and reconsideration of sentence were denied. Defendant appeals his conviction and adjudication as a third felony offender.

DISCUSSION

The defendant contends the evidence was insufficient to sustain his conviction. Def

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State v. Johnson, 887 So. 2d 751, 2004 WL 2659121 (La. Ct. App. 2004).

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