State v. Tate

670 So. 2d 671, 1996 WL 95028
CourtLouisiana Court of Appeal
DecidedMarch 6, 1996
DocketCR95-1152
StatusPublished
Cited by12 cases

This text of 670 So. 2d 671 (State v. Tate) 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. Tate, 670 So. 2d 671, 1996 WL 95028 (La. Ct. App. 1996).

Opinion

670 So.2d 671 (1996)

STATE of Louisiana, Plaintiff-Appellee,
v.
Daniel Stephen TATE, Defendant-Appellant.

No. CR95-1152.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1996.

*672 Morgan J. Goudeau, III, Opelousas, David Michael Miller, Asst. Dist. Atty., for State of Louisiana.

William Tracy Barstow, Opelousas, Daniel J. Stanford, Eunice, for Daniel Stephen Tate.

Before DOUCET, C.J. and YELVERTON and SAUNDERS, JJ.

YELVERTON, Judge.

A jury convicted defendant, Daniel Stephen Tate, of two counts of armed robbery, in violation of La.R.S. 14:64. He was sentenced to 20 years at hard labor on count one and 25 years at hard labor on count two to run consecutively without benefit of probation, parole, or suspension of sentence. No motion to reconsider sentence was filed by defendant. Defendant now seeks review by this court alleging two assignments of error.

ERRORS PATENT:

There is one error patent. Defendant was not present at trial. La.Code Crim.P. art. 831 requires his presence.

Defendant was present on September 7, 1994, when his jury was impaneled. The trial court told the jury in defendant's presence to report back on September 20, 1994, the date of the trial. He was in other ways made aware on several occasions that September 20 would be the date of his trial. According to defense counsel, on Friday, September 16, counsel met with defendant to talk about the case, and told defendant to be at his office on September 19, the day before trial, but defendant did not show up. On September 20, his counsel was present for the trial but he was not. When defendant did not show up for trial, the court directed the sheriffs office and the bailiff to call defendant's father at work and to call the house where defendant lived. His father did not know where he was and there was no answer at the house. The trial judge forfeited the bond and issued a bench warrant. Defense counsel orally moved for a mistrial explaining that he had talked to defendant on Friday, defendant was apprised of the fact he had to be in court, and maybe something was wrong. The trial court denied the motion. Finding that defendant voluntarily absented himself from trial and having no reason to grant a mistrial, the trial court called for the jury to proceed with the trial.

A defendant who freely and voluntarily absents himself from his trial waives his right to be present. La.Code Crim.P. art. 832(A); State v. Humphrey, 576 So.2d 1104 (La.App. 3 Cir.1991). The trial judge, who understood the situation better than we do, was in the best position to determine whether the absence was voluntary. Defendant's absence from the hearing was voluntary, and it was not error to conduct the trial without him.

FACTS:

Mr. Cook's, a fast-food place in St. Landry Parish, was robbed on October 1, 1992, by an unidentified masked man while armed with a dangerous weapon. On December 27, 1992, Jet 24, a convenience store in St. Landry Parish, was robbed by two unidentified masked men. Deputies questioned defendant about both robberies. He gave two statements confessing to taking part in both robberies.

ASSIGNMENT OF ERROR NO. 1:

By this assignment of error, defendant argues that the verdict, on each count, is contrary to the law and evidence in that the evidence is insufficient to sustain a verdict of guilty and the evidence, when viewed in the light most favorable to the State, does not reasonably support a finding of guilt.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 *673 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1982).

In order for the State to obtain a conviction, it had to prove the elements of the crime beyond a reasonable doubt. Armed robbery is defined 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, while armed with a dangerous weapon. La.R.S. 14:64. A principal is any person concerned in the commission of a crime, whether present or absent, and whether he directly commits the offense, aids and abets in its commission, or directly or indirectly counsels or procures another to commit the crime. La.R.S. 14:24. A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending on the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981).

In the present case, the record reveals that the State first introduced the testimony of witnesses to prove that an armed robbery occurred. Afterwards, the State introduced defendant's two confessions to establish defendant's part as a principal in the commission of the armed robberies.

THE MR. COOK'S ROBBERY

Two witnesses testified about the robbery at Mr. Cook's. Brenda Savoie, who was the assistant manager, and Dana Richard, who was working the front cash register, along with defendant, who was the cook, were present at 10:00 p.m., closing time. The standard closing procedure required that the cook first clean the kitchen and then the parking lot. However, on the night of the robbery, defendant asked her if he could clean the lot before he cleaned the kitchen. It was Savoie's normal procedure to count the day's receipts in her office and then assist the person out on the lot, but she let him clean the lot first. Less than a minute after defendant went out the back door the robber came up behind her in her office, put a gun to her head, and told her to give him the money or he would shoot her. He was wearing a mask. Ms. Savoie testified that his gun looked like a revolver because it did not look like her own .25 automatic. After giving the robber the money bag containing around $1000, Ms. Savoie and Dana followed him to close the back door. When the robber was at the back door, defendant was by the trash dumpster. The robber told defendant to "get in here," fired a shot, and then ran. She closed the door and locked it leaving defendant outside, then called the police. She did not connect defendant to the robbery at the time.

The other employee, Ms. Dana Richard, testified that she first realized something was wrong when Brenda screamed and called for her to come into her office. When she entered the office she noticed a guy wearing a ski mask and holding a gun to Brenda's head. The robber asked for all the money from the register. After the money was put into the bag, the robber told them not to call the police, or he would come back for them. The robber then left. She testified she did not know where defendant was when the robber was in the room with her and Brenda. She also testified she did not associate defendant with the robbery at that time because she had no reason to, nor did she recognize or know the person who robbed the restaurant.

Mr. Tim Touchet, the general manager for Mr.

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Bluebook (online)
670 So. 2d 671, 1996 WL 95028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tate-lactapp-1996.