State v. Malbrough

94 So. 3d 933, 11 La.App. 3 Cir. 1241, 2012 WL 2327697, 2012 La. App. LEXIS 881
CourtLouisiana Court of Appeal
DecidedJune 20, 2012
DocketNo. 11-1241
StatusPublished
Cited by3 cases

This text of 94 So. 3d 933 (State v. Malbrough) 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. Malbrough, 94 So. 3d 933, 11 La.App. 3 Cir. 1241, 2012 WL 2327697, 2012 La. App. LEXIS 881 (La. Ct. App. 2012).

Opinion

GREMILLION, Judge.

11 Defendant, Dryefus Malbrough, along with three co-defendants, Terrance Sine-gal, Lorenzo Angelle, and Courtney Romero, robbed the victim, Nicholas Carter, of $289.00. Defendant was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. Following a jury trial, Defendant was found guilty of the responsive verdict, simple robbery. He was sentenced to serve seven years at hard labor, with credit for time served.

[935]*935Defendant is now before this court on appeal, challenging his conviction in four assignments of error. We affirm the defendant’s conviction, but remand the matter to the trial court with instructions to comply with the notification requirements of La.Code Crim.P. art. 930.8.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is one error patent.

The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that he received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, O5-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

Defendant argues that “[t]hese three assignments of error are linked together and when jointly considered establish insufficient proof to convict the defendant beyond a reasonable doubt.”

|2When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, these assignments of error are addressed first in the event Defendant is entitled to an acquittal.

The analysis for a claim of insufficient evidence is well-settled:

The standard of appellate review for a sufficiency of the evidence claim 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 crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86.

Defendant was convicted of simple robbery, which is defined in La.R.S. 14:65(A) as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” Defendant does not contest whether a robbery took place on the evening of December 15, 2008. He challenges only his identity as established by co-defendants Lorenzo Angelle and Courtney Romero.

Impermissible Hearsay

Defendant maintains that “the trial court allowed the introduction of impermissible hearsay by allowing both [Officers Glenn Landry and Monika Porter] to swear to the jury what Courtney Romero [936]*936and Lorenzo Angelle saw and 13did despite untold objections by defense counsel” in order “to bolster the testimony of two blemished witnesses who actually committed the crimes.” We note that Defendant’s argument does not identify any places or pages in the record where hearsay objections were made during the officers’ testimony and/or where the trial court ruled on the objections. Uniform Rules — Courts of Appeal, Rule 2 — 12.4 provides in pertinent part:

The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the record is not made.

Accordingly, we could disregard Defendant’s argument as to assignment of error number three.

Moreover, even if the record revealed that Defendant raised a hearsay objection to the testimony of either officer, and the testimony was impermissibly admitted, we find that the error was harmless. Both Romero and Angelle testified at trial and were subject to cross-examination. Also, the evidence was cumulative with the other evidence presented, which is discussed below in greater detail. See State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120. There is no merit to assignment of error number three.

Statements of Lorenzo Angelle and Courtney Romero

Defendant maintains that the trial court improperly allowed the introduction of Romero and Angelle’s written statements which, in effect, “corroborated” Officer Landry and Officer Porter’s versions of the events.

During the testimony of Officer Porter, the State moved to introduce the statements of Romero and Angelle, which were prepared as part of her report at the time the offense was committed. Counsel for Sinegal objected on the basis that introduction of the statements should be withheld until the respective individuals ^testified at trial. The objection was overruled, and Defendant’s counsel concurred in Sinegal’s objection.

The statements were then disseminated to the jury, and Sinegal’s counsel reiterated his objection to the introduction of the statements. Defendant’s counsel stated:

MR. ALONZO: Judge, I’d like to get something on the record before that goes to the jury. I’d like to put something on the record on behalf — in regards to those documents before they go to the jury.
THE COURT: Gentlemen, I’ll let you do that and those are statement from co-defendants.
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MR. ALONZO: Yes, Judge, I just wanted to note for the record our prior objections and I’d like to just state for the record, Judge, we have consistently objected today to the statements that have come in on the co-defendants because they’ve already pled and that — I understand the Court’s position on that. But now, Judge, on what just occurred for the record was that the co-defendants written statements prior to their testimony was handed to the jury, the jury read it for approximately twenty-five minutes. Judge, that information is gone to the jury without our chance to cross-examine the witness. It’s done.

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Cite This Page — Counsel Stack

Bluebook (online)
94 So. 3d 933, 11 La.App. 3 Cir. 1241, 2012 WL 2327697, 2012 La. App. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-malbrough-lactapp-2012.