State v. Kennedy

631 So. 2d 1195, 1994 WL 17975
CourtLouisiana Court of Appeal
DecidedJanuary 25, 1994
Docket93-KA-776
StatusPublished
Cited by7 cases

This text of 631 So. 2d 1195 (State v. Kennedy) 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. Kennedy, 631 So. 2d 1195, 1994 WL 17975 (La. Ct. App. 1994).

Opinion

631 So.2d 1195 (1994)

STATE of Louisiana
v.
John KENNEDY.

No. 93-KA-776.

Court of Appeal of Louisiana, Fifth Circuit.

January 25, 1994.

*1196 John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.

Bruce G. Whittaker, Indigent Defender Bd., Gretna, for defendant-appellant.

Before DUFRESNE, WICKER and GOTHARD, JJ.

DUFRESNE, Judge.

The defendant, John Kennedy was charged by Bill of Information with six counts of armed robbery, LSA-R.S. 14:64, and two counts of attempted armed robbery, LSA-R.S. 14:27 and 14:64. At the April 26, 1993, arraignment, defendant pled not guilty and not guilty by reason of insanity.

The court conducted a sanity hearing on May 27, 1993, and June 24, 1993. After considering expert psychiatric testimony, the trial judge concluded that defendant was mentally competent to stand trial. Prior to trial, the defendant withdrew his plea of not guilty by reason of insanity.

The matter proceeded to trial on all eight counts on July 13, 14, 15, and 16, 1993. Following presentation of the evidence, the jury found defendant guilty as charged on all eight counts.

On July 21, 1993, the judge sentenced defendant to fifty years at hard labor on each of the six armed robbery convictions, and twenty-five years at hard labor on each of the two attempted armed robbery convictions, all counts to run consecutively and without benefit of parole, probation or suspension.

Defendant thereafter filed a Motion for Appeal.

FACTS

The eight counts charged in the bill of information arise out of four separate incidents. The facts surrounding each incident will now be individually discussed, as well as the facts leading to defendant's apprehension and arrest.

FACTS SURROUNDING COUNTS SIX AND SEVEN

On December 10, 1992, Ethelene Stone and James Vance of Mississippi, were visiting the New Orleans area because Mr. Vance was scheduled to have back surgery at Ochsner. After shopping at Lakeside Mall on the night of December 10th, they went to Chesterfield's nightclub and then proceeded to the nearby Bennigan's for a cup of coffee at approximately 11:00 p.m. As they walked across the parking lot, a car sped up behind them and stopped. The passenger, armed with a sawed off shotgun jumped out of the vehicle, and demanded Ms. Stone's purse and Mr. Vance's billfold. Ms. Stone threw defendant her purse, which contained a good bit of jewelry, and stepped back as far as she could. Mr. Vance was not robbed of anything because he told the perpetrator that he did not have a wallet. After the armed robber grabbed Ms. Stone's purse, he jumped in the car and fled. Ms. Stone was unable to make a positive identification of her assailant; however, she identified a shotgun at trial as similar to the one used in the robbery. She also identified photographs of an automobile as similar to the one used in the robbery. Additionally, she identified pictures of some of the property stolen from her purse.

In addition to corroborating Ms. Stone's testimony, Mr. Vance testified that during the whole incident, he kept looking at the perpetrator's face, gun barrel and license plate number. He positively identified defendant in the courtroom as the perpetrator. In addition, Vance was shown a photographic line-up on December 30, 1992, by Detective Murray Roark of the Baldwin County Sheriff's Office. Vance immediately made a positive identification of defendant in the photographic line-up. Both at trial and when Detective Roark went to his house to conduct *1197 the photographic line-up, Vance identified photographs of the vehicle as similar to the one used in the robbery. He additionally identified the gun as similar to the one used in the robbery.

FACTS SURROUNDING COUNT ONE

On December 12, 1992, while David Fassnacht was in the driveway of his former Metairie residence, he noticed a silver/gray sports coupe turn onto his street. The driver of the vehicle rolled down his window and called Fassnacht over to ask him for some directions. As Fassnacht gave the driver directions, the passenger exited the vehicle, went around the back of the car, pointed a shotgun at Fassnacht and demanded his wallet and watch. After he surrendered his wallet, which contained several credit cards and approximately $85.00 cash, and watch, defendant told Fassnacht to turn around and walk towards the house. Fassnacht took about five steps when he heard the car drive off. He then turned around to get another look at the car. A few days later, Sergeant Toca of the Jefferson Parish Sheriff's Office showed this victim a photographic line-up. Fassnacht made a positive identification of defendant as the perpetrator both in the photographic line-up and at trial. During trial, Mr. Fassnacht also identified a shotgun and photographs of a vehicle as similar to those used in the robbery.

FACTS SURROUNDING COUNT EIGHT

On December 12, 1992, at about 6:30 a.m., as Robert Noote was leaving his residence in Metairie, a car approached him and the driver of that vehicle asked him for directions to a certain street. As he talked to the driver, the passenger exited the car, walked around the back of the car and approached Noote. The passenger pointed a sawed off shotgun at Noote and demanded all his money. After Noote gave him the money that he had, approximately $26.00, the assailant told the victim to turn around and not look at him. The passenger got back into the car and the perpetrators fled.

The police subsequently went to his house to conduct a photographic line-up; however, when he told the officer that he had seen the perpetrator's picture in the newspaper, the officer opted not to do a photographic line-up. However, Noote identified defendant in court as the robber. He also identified a gun and photographs of a vehicle as similar to those used in the robbery.

FACTS SURROUNDING COUNTS TWO, THREE, FOUR AND FIVE

On December 12, 1992, Gary Raphael, his wife, Linda, and another couple, David and Melba Bruce, were going together to a Christmas party at a friend's house in their Metairie neighborhood. After Gary Raphael parked his car, his wife, Linda, and Melba and David Bruce walked up on the sidewalk while Gary Raphael went to the trunk of the car to get a casserole that his wife had made. As he opened the trunk, he heard a car pull up alongside him. A few seconds later, he heard a voice from behind demand their wallets and purses. Gary Raphael put his hands in the air, turned around and saw defendant armed with a shotgun. Gary Raphael and David Bruce surrendered their wallets and Linda Raphael threw her purse on the ground. Melba Bruce did not give defendant anything because she was not carrying a purse. Defendant took the two wallets and the purse and fled.

Subsequent to the robbery, Gary Raphael, Linda Raphael and David Bruce went to Jefferson Parish Correctional Center for a physical line-up. All three of these victims made a positive identification of defendant, both at the physical line-up and in court, as the perpetrator. Mrs. Melba Bruce made a positive identification of defendant only at trial, as she did not participate in any pretrial identification procedures. Each of these four victims identified the gun in court as being similar to the one used in the robbery. With regard to the photographs of the vehicle, Gary and Linda Raphael and David Bruce were able to identify them as similar to the one the perpetrator was in; however, Melba Bruce testified that she did not get a good look at the vehicle.

FACTS SURROUNDING DEFENDANT'S ARREST

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Cite This Page — Counsel Stack

Bluebook (online)
631 So. 2d 1195, 1994 WL 17975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kennedy-lactapp-1994.