State v. Stewart

909 So. 2d 636, 2005 WL 1819778
Louisiana Court of Appeal·Decided June 29, 2005·No. 2004-KA-2219·Published·Cited by 29 cases

Opinion

909 So.2d 636 (2005)

STATE of Louisiana
v.
Kendall J. STEWART and Emanuel Veal.

No. 2004-KA-2219.

Court of Appeal of Louisiana, Fourth Circuit.

June 29, 2005.

Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Yolanda J. King, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellee.

Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Kendall J. Stewart.

*637 Laura Pavy, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Emanuel Veal.

(Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).

JAMES F. McKAY III, Judge.

STATEMENT OF CASE

On October 23, 2003, the appellants Kendall Stewart and Emanuel Veal were each charged with two counts of armed robbery.[1] At their arraignment on October 27, 2003, they both pled not guilty to all charges. On April 22, 2004, the trial court denied their motions to suppress the identifications. The State tried the appellants on the two armed robbery counts on September 28-29, 2004, and at the conclusion of trial a twelve-person jury found both the defendants guilty of the responsive verdicts of two counts of first-degree robbery. On October 8, 2004, the trial court sentenced Kendall Stewart and Emanuel Veal, on each count, to serve fifteen years at hard labor without benefit of probation, parole or suspension of sentence, the sentences to run concurrently. The court also granted their motions for appeal on that date. Although the State filed a multiple bill against Mr. Stewart, apparently on March 3, 2005, the court ruled that the State failed to prove the allegations in the bill.

FACTS

Aimee Bonneval and Amanda Hofstetter were robbed inside Ms. Bonneval's apartment just before midnight on August 9, 2003. Ms. Bonneval testified that she and Ms. Hofstetter had arrived at the apartment a short time before the robbery, and they settled onto a sofa in the living room to watch television while drinking beer. Ms. Bonneval stated that they heard a loud noise, and then the front door flew open and two men rushed into her apartment. Ms. Bonneval identified Kendall Stewart as the first man to come into the apartment and Emanuel Veal as the second man. She testified that the men yelled at the two women to turn around so that they would not be facing them, but Ms. Bonneval was able to see the men's faces because when she turned around she faced a mirror, from which she could observe the robbers. She stated that both men were carrying small handguns. When the men noticed that she was watching them in the mirror, they ordered her and Ms. Hofstetter to put their heads down with their faces toward the sofa. Ms. Bonneval testified that when the men demanded the women's purses, she gave them hers, while Ms. Hofstetter pointed to her purse, which was lying nearby. Ms. Bonneval stated that the robbers had guns to both women's heads. She testified that Mr. Stewart then went through the apartment looking for things to take, while Mr. Veal stayed with the women. She testified that Mr. Stewart ordered her to tell him the location of her money and jewelry, and she replied that she did not have any. He then asked for her telephone, and she told him she only had a cell phone. She stated that Mr. Stewart and Mr. Veal turned out the lights in the apartment and left, threatening to shoot the women if they walked out of the door to the apartment.

Ms. Bonneval testified that the lights had been on during the entire robbery, and she was able to get a good look at both men's faces. She stated that she gave to the police descriptions of the two men: *638 the first man who came through the door was approximately 5'10" tall, weighed about 160 pounds, and was wearing jeans and a blue and white jersey; the second man was approximately 5'6" tall, weighed about 140 pounds, and was wearing jeans and a white t-shirt. She stated that some days later a police officer showed her two photographic lineups. She testified she chose no one from the first lineup, but she chose Mr. Veal's photo from the second one. Later she was shown a third lineup, from which she chose Mr. Stewart's photo.

Ms. Bonneval admitted that she did not know for sure that Mr. Stewart was the man who searched the apartment because she had her head down on the sofa, but she assumed he was the one who did so. She testified that although the only time she saw the second robber's face was his reflection in the mirror, she was able to get a good look at both him and the first man who came through the door. She maintained that she was certain the two robbers were Mr. Stewart and Mr. Veal.

Ms. Hofstetter testified that she was sitting on the sofa when the two robbers burst into the apartment. She said that she got a good look only at the shorter of the two while he was still standing out on the lighted porch after the first man entered. She testified that she could not make a positive identification from any of the photo lineups, but in one lineup she narrowed her choices down to two men after looking at the lineup for a long period of time, and she made a tentative identification of those two men, one of which was Mr. Veal.

Detective Steve Mortell testified that he conducted a follow-up investigation of the robbery, during which he came up with three suspects: Mr. Stewart, Mr. Veal, and Mr. Junius Jackson. He testified he showed Ms. Bonneval three photographic lineups. From the first, which contained photos of both Mr. Stewart and Mr. Jackson, she chose no one. When he showed her a lineup with Mr. Veal's photo, she chose Mr. Veal's photo. He later showed Ms. Bonneval another lineup from which she chose Mr. Stewart's photo. Detective Mortell testified that he showed Ms. Hofstetter only the lineup containing Mr. Veal's photograph because she had indicated that she only noticed the second robber's face. He testified that Ms. Hofstetter was only able to make a tentative identification from this lineup in that she was only able to narrow her choice to two men, one of which was Mr. Veal.

DISCUSSION

ERRORS PATENT/KENDALL VEAL'S ASSIGNMENT OF ERROR

THREE

A review of the record reveals there are no errors patent.

The State argues that the appellant Kendall Stewart is procedurally barred from taking an appeal from his conviction and sentence because he did not move to reinstate his appeal after the trial court found there was no basis for the multiple bill filed against him. In support, the State cites to a footnote in Mr. Stewart's brief wherein he reserved the right to appeal any adjudication and sentence as a multiple offender. The State argues that because Mr. Stewart did not reiterate his intent to appeal his conviction and sentence once the trial court found him not to be a multiple offender, he lost his right to appeal.

This claim has no merit. Although the transcript of sentencing ends before either of the defendants moved for an appeal, the record contains a notice of appeal, signed by the minute clerk for the section of court wherein Mr. Stewart was convicted and sentenced, which notes that the trial court *639 granted an appeal for both defendants on the day of sentencing. Contrary to the State's argument, Stewart had no obligation to reiterate his intent to appeal his conviction and sentence once the trial court found he was not a multiple offender. Thus, this court may consider his claims on appeal.

REMAINING ASSIGNMENT OF ERROR

By the defendant, Kendall Stewart's only assignment

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State v. Stewart, 909 So. 2d 636, 2005 WL 1819778 (La. Ct. App. 2005).

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