State v. Moore

57 So. 3d 1033, 2010 La.App. 4 Cir. 0314, 2010 La. App. LEXIS 1373, 2010 WL 3993706
Louisiana Court of Appeal·Decided October 13, 2010·No. No. 2010-KA-0314·Published·Cited by 14 cases

Opinions

CHARLES R. JONES, Judge.

hThe Appellant, Alphonse Moore, seeks review of his conviction and sentence for armed robbery and being found to bé a second felony offender. Finding no error on the part of the district court, we affirm.

On August 21, 2008, Moore and his code-fendant were charged with armed robbery. The district court denied the motions to suppress the evidence, identification, and statement and found probable cause. The charge against the codefendant was amended to accessory after the fact, and she entered a guilty plea as charged. The jury found Moore guilty as charged, and he was sentenced to serve fifteen years at hard labor without benefit of parole. Moore was then adjudicated a second felony offender. After vacating the previous sentence imposed, the district court resen-tenced him to serve forty-nine years and six months at hard labor without benefit of parole. Moore’s motion to reconsider sentence was denied, but his motion for appeal was granted.1

On the morning of June 22, 2008, Darrell Garnett was walking in the 1300 block of Bienville Street on his way to work when he was approached by a man and a woman. The man asked him a question while simultaneously grabbing Mr. | ^Garnett’s right arm. The man was [1036] armed with a knife. Both the male and female searched Mr. Garnett’s pockets, finding money. The male then stabbed Mr. Garnett in the chest, and they searched a green tote bag that Mr. Gar-nett was carrying. Inside the tote bag, they found Mr. Garnett’s wallet and a CD player that they took before fleeing.

Officer Jeffrey Tyler was the first to arrive on the scene. He found Mr. Gar-nett on the ground bleeding. Before being transported to the hospital, Mr. Garnett gave a description of the perpetrators that was dispatched over the police radio. The male was wearing jeans and a light blue shirt with an Air Jordan logo. The female was wearing a brown shirt, cut off shorts, and a pink Las Vegas visor.

Sergeant Arnold Williams was on Canal Street when he heard the dispatch regarding the robbery and the description of the two perpetrators. Two individuals fitting the description crossed in front of his car. They were headed in the opposite direction from which the sergeant was traveling. The female was carrying a white plastic bag. Sergeant Williams called dispatch and executed a U-turn, but lost sight of them while he was turning. He last saw the individuals at the corner of Claiborne Avenue and Canal Street near a hotel. A cab was parked at the hotel.

Officer Donald Nydes responded to the dispatch that the perpetrators had fled towards a hotel on the corner of Claiborne Avenue and Canal Street. Once he arrived at the hotel he received information that caused him to continue to drive down Canal Street looking for a cab occupied by a male and a female. When he could not find the cab, he returned to the hotel. At the hotel, the officer approached a United Cab that was at the hotel and spoke to the driver, Faisal Samad. Mr. Samad told the officer that he picked up a male and a female and dropped them off at the corner of Banks Street and Jefferson Davis Parkway. ^Officer Nydes proceeded to that corner and apprehended the subjects with the help of a female officer. After other officers arrived, the subjects were returned to the hotel. Officer Eugene Smothers advised the two subjects of their Miranda rights. The female gave an in-culpatory statement that included the location of where the victim’s property could be located. The subjects were then arrested, and a sum of money was taken from the male in a search incident to his arrest. They were identified by the cab driver as the two people who had entered his cab, and by Sergeant Williams as the individuals who had crossed in front of his police vehicle. Officer Tyler and Sergeant Williams retrieved the victim’s property that was discarded in a plastic grocery bag on top of a garbage pile at the corner of Banks Street and Jefferson Davis Parkway.

Detective Douglas Butler met with the female subject, Cherisse Fox, at the station. Before he interviewed her, he provided Fox with a rights of arrestee form and informed her of her Miranda rights. Fox voluntarily elected to make a taped statement and signed the form waiving her lights. At trial, Fox could not remember anything regarding the incident, including giving a statement. She admitted that she knew Moore, her former codefendant, and that she entered a guilty plea to accessory after the fact to armed robbery. The tape of her statement was played for the jury. Detective Butler identified his and her voices on the tape.

Officer Smothers met with the victim, Mr. Garnett, at his place of employment to show the victim a photographic lineup. The victim immediately identified Moore; he could not identify Cherisse Fox. Mr. Garnett explained that his focus was on Moore because Moore had the knife.

[1037] In the sole assignment of error raised by counsel and assignments of error numbers one and two of Moore pro se, counsel and Moore, pro se, argue that the 14district court erred in permitting the introduction of testimonial hearsay evidence in the form of the taped statement of Moore’s former codefendant in violation of the Confrontation Clause. Though called to testify by the state, Ms. Fox indicated that she could not remember anything even after her memory was refreshed. The court ordered her to testify, noting that she faced no criminal liability as she had already entered a guilty plea to accessory after the fact. Ms. Fox still did not cooperate. Hence, she was declared unavailable by the court and placed in contempt. The court then ruled that the tape of her statement was admissible as a statement against interest under La. C.E. art. 804(B)(3). Moore urges in his second assignment of error that the district court erred in declaring that it was a statement against interest.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This right provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. See also La. Const. Art. I, § 16; La. R.S. 15:273. State v. Welch, 99-1283 (La.4/11/00), 760 So.2d 317; State v. Grainer, 2002-0703 (La.App. 4 Cir. 12/4/02), 834 So.2d 555. Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by statute. La. C.E. art. 802. Hearsay evidence is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. State v. Everidge, 96-2665, p. 7 (La.12/2/97), 702 So.2d 680, 685; State v. Legendre, 2005-1469, p. 7 (La,App. 4 Cir. 9/27/06), 942 So.2d 45, 50.

•La. C.E. art. 804 provides that the following are not excluded by the hearsay rule if the declarant is unavailable as a witness. La. C.E. art. 804(B)(3), provides in pertinent part:

• B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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State v. Moore, 57 So. 3d 1033, 2010 La.App. 4 Cir. 0314, 2010 La. App. LEXIS 1373, 2010 WL 3993706 (La. Ct. App. 2010).

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