State v. Smith

513 So. 2d 438
Louisiana Court of Appeal·Decided September 23, 1987·No. 18903-KA·Published·Cited by 29 cases

Opinion

513 So.2d 438 (1987)

STATE of Louisiana, Appellee,
v.
Robin Lynn SMITH, Appellant.

No. 18903-KA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1987.

*439 Bodenheimer, Jones, Klotz & Simmons by F. John Reeks, Jr., Shreveport, for appellant.

Richard Carney & Tommy Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before HALL, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

The defendant, Robin Lynn Smith, was charged by bill of information with armed robbery, LSA-R.S. 14:64, for his involvement in an incident at a 7-Eleven store in Shreveport. After a jury trial, he was found guilty of the lesser offense of first *440 degree robbery, LSA-R.S. 14:64.1. He was sentenced to 30 years' imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Smith now appeals, urging two of his original assignments of error. For the reasons expressed, we affirm the conviction.

FACTS

Shortly after 4:30 on the morning of February 6, 1986, police received a report of an armed robbery at the 7-Eleven store on Jewella at West 70th Street. The store clerk, Ms. Anthony, was working the graveyard shift alone when two men walked into the store. The first, later identified as Donald Dallas, went directly to the cash register, while the second, defendant Smith, walked past the counter, stationed himself about five feet from Ms. Anthony and faced the front of the store. Dallas asked Ms. Anthony for change for a dollar; when she hit the "no sale" key on the register, Dallas said, "Give me your money," and brandished a pistol at his side. Ms. Anthony began to take the money from the drawer when Dallas said, "Hurry up," so she lifted the whole drawer, including a marked $2 bill, and handed it to him. Dallas then walked out, immediately followed by Smith. Because she was scared, Ms. Anthony had not looked closely at Smith. However, she could see through the window the rear end of a light blue car which sped off the parking lot immediately after the robbers left. She called the police, gave a description of her assailants and reported that they had driven off. She later told police she thought Smith had served as a lookout man while the robbery occurred.

Officer R.J. Smith, who had received a radio dispatch about the robbery, was driving east on West 70th toward the 7-Eleven when he passed a speeding blue Buick going west. Officer Smith turned around and gave chase, reaching a speed of 80 m.p.h. With the assistance of Officers Dodson and Jackson, to whom he had radioed for help, he eventually stopped the car on Greenwood Road just west of Monkhouse Drive. Inside the car were three black men: Smith in the back seat, Dallas in the front passenger seat, and a third suspect, Calvin Elie, behind the wheel. They were taken into custody.

During the next few hours, police combed the path between the 7-Eleven and the place where the stop was made. Detective Magaha recovered the cash drawer on the side of 70th Street. Detective Shock and Sergeant Wyche obtained a consent to search the Buick and recovered about $10 in loose change and bills, including the marked $2 bill. Defendant Smith led officers to an area on 70th Street where Dallas's gun was eventually recovered.

Each of the three suspects testified in Smith's defense. Calvin Elie, the driver, testified that he had been driving around with Dallas late on the night of February 5, when he saw Smith walking down Line Avenue between 73rd and 74th Streets. He offered Smith a ride, which Smith accepted. They spotted Smith's brother, Albert, going down Youree; they flagged him down and he gave Smith a few dollars for gas, which Smith handed to Elie. Elie testified that they did not take Smith home immediately, but stopped at the 7-Eleven on Jewella at 70th. Disclaiming any knowledge that a robbery was afoot, Elie testified he waited in the car while Dallas and Smith went in for cigarettes; when they returned about five minutes later, he drove off at normal speed. About a quarter of a mile down the road, they told him about the robbery. On cross-examination, the prosecutor developed the time frame of the night's activities. Elie admitted he had started driving about 10 p.m. and must have picked up Smith at 11:00 or 11:30. After first saying they had just driven around until the robbery at 4:30, Elie admitted that they had earlier stopped at another 7-Eleven on Midway, where he had waited in the car while Smith and Dallas went in. He resolutely denied, however, any knowledge of robbery until a few minutes after they left the 7-Eleven on Jewella. For his involvement in the incident, he pled guilty to accessory after the fact of armed robbery.

*441 Dallas testified that he and Elie picked up Smith between 11:30 and midnight, and then drove around a while until they stopped at the Jewella Street 7-Eleven. After he and Smith entered the store, he asked for change and pulled a gun on the cashier. He claimed that Smith probably did not suspect his intended robbery and did not even know he had a gun. According to Dallas, Smith stood by silently and left immediately when Dallas left. On cross-examination, Dallas admitted that he pled guilty to attempted armed robbery in exchange for the state dropping a first degree robbery charge stemming from the earlier incident at the Midway 7-Eleven store. He further admitted that after picking up Smith, they went to his grandmother's house and got the gun. This was around 2:00 a.m.

Smith took the stand and on direct examination corroborated the others' version of how they met him on the street about 11:00 or 11:30, adding that he had been playing pool that evening and had lost all his money. He testified that they rode to the Midway 7-Eleven shortly after midnight; he bought a beer there. As he was leaving, he saw Dallas walk out with an armload of cigarette cartons. Smith said the clerk asked him if he knew Dallas, to which Smith said, "Yes," and left. They got back into the car and Dallas told them they had to go get some cocaine; Elie drove them to a house in Cedar Grove where Dallas swapped the cigarettes for some "coke." Dallas then instructed Elie to drive to his grandmother's house on 69th Street, where Dallas started "fixing up" to take the coke. Dallas then went inside, came back and said, "Let's go." Smith testified that he kept asking them what they were doing, to no avail. They drove to the 7-Eleven at Jewella, and Dallas headed in; Smith almost did not follow him, but went in after all. After the robbery, they returned to the car and sped off, eventually being stopped by the police. While still on direct examination, Smith admitted a lengthy record of prior convictions and arrests, including an attempted burglary of a 7-Eleven store, for which he was serving probation when the instant offense occurred. On cross-examination, Smith admitted two previous convictions for theft and one for forgery. He said he saw Dallas take the cigarettes from the Midway 7-Eleven and denied taking part in the robbery. He also admitted staying with Dallas while they sat in front of his grandmother's house and Dallas used the cocaine. He said he stayed with them because he had known Elie since childhood and trusted him implicitly. He claimed he went into the Jewella 7-Eleven with Dallas "just to see what he was up to."

As rebuttal, the state offered the testimony of Cecil Harper, the clerk of the Midway 7-Eleven. He testified that around 12:00 or 12:30, Smith had come in alone, asked the price of a quart of beer, looked around and left. Then about 12:50, Smith came back in with another man.

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