State v. Wix

838 So. 2d 41, 2002 La.App. 4 Cir. 1493
CourtLouisiana Court of Appeal
DecidedJanuary 15, 2003
Docket2002-KA-1493
StatusPublished
Cited by17 cases

This text of 838 So. 2d 41 (State v. Wix) 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. Wix, 838 So. 2d 41, 2002 La.App. 4 Cir. 1493 (La. Ct. App. 2003).

Opinion

838 So.2d 41 (2003)

STATE of Louisiana
v.
Derrick WIX and Michael Smith.

No. 2002-KA-1493.

Court of Appeal of Louisiana, Fourth Circuit.

January 15, 2003.

*43 Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Michael Smith.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Derrick Wix.

Harry F. Connick, District Attorney Of Orleans Parish, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

(Court Composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).

MAX N. TOBIAS, JR., Judge.

The defendants, Michael Smith ("Smith") and Derrick Wix ("Wix"), were each charged by bill of information on 3 March 2000 with one count of attempted second-degree murder, one count of attempted armed robbery, and three counts of armed robbery, respective violations of La. R.S. 14:(27)30.1, 14:(27) 64, and 14:64. The defendants pleaded not guilty at their 13 March 2000 arraignment. On 22 June 2000, Wix elected to have a judge trial. On 28 June 2000, a twelve-person jury found Smith guilty of one count of attempted armed robbery, one count of attempted second-degree murder, and two counts of armed robbery. On 30 June 2000, the trial court found Wix guilty of three counts of attempted armed robbery, and one count of aggravated battery. On 15 December 2000, Smith was sentenced to twenty-one years for one count of attempted armed robbery, thirty years for one count of attempted second-degree murder, and thirty-seven years for each of the two remaining counts of armed robbery. On that same date, Wix was sentenced to seventeen years for one count of attempted armed robbery, seven years for one count of aggravated battery, and seven years for each of the remaining two counts of attempted armed robbery. On 5 April 2002, the trial court granted the defendants an out of time appeal.

STATEMENT OF FACTS

Warren Henderson testified that on 24 December 1999, he was outside his front door on Kent Street when two black men "came out of nowhere, and pulled a gun." He described the gun as a gold 9 millimeter. Mr. Henderson ran to his front door to alert his mother when he heard gunshots. His brother, Germaine Henderson, who had been cleaning his truck, had been shot. Mr. Henderson identified the defendants as the two black male perpetrators. Mr. Henderson further testified that each of the defendants had guns that day.

Leola Henderson testified that at some point she heard a noise, looked outside, and saw her sons, Warren and Germaine, being held at gunpoint by two individuals. *44 Ms. Henderson further testified that she immediately called the police. While calling the police she heard gunshots, she looked out and saw that her son, Germaine, had been shot. Ms. Henderson testified that she did not get a good look at the two gunmen.

Germaine Henderson testified that on 24 December 1999, he was robbed outside of his mother's home. He further testified that the gunman shot him out of apparent frustration because he could not steal his vehicle. He identified the defendants as the gunmen who approached him and his brother. He further identified Smith as the gunman who shot him.

Detective John Duzak, of the New Orleans Police Department, testified that he prepared photographic line-ups and showed them to both Warren and Germaine Henderson. Both Henderson brothers selected Smith out of the line-ups. Mr. Germaine Henderson also picked Wix out of a photographic line-up. A search warrant was executed on Wix's residence where an empty box of .38 caliber bullets and an AK-47 clip were seized.

Officer Sylvester Burke, of the New Orleans Police Department, testified that he responded to the shooting on 24 December 1999. Officer Burke spoke to Mr. Germaine Henderson who stated that he was robbed and shot.

Christopher Lesley testified that as he and his fiancée, Janet Meyer, while walking near the intersection of Alex and Sequin Streets in Algiers, encountered two men who passed them by wearing dark hooded jackets. Mr. Lesley stated that once the two men got a short distance away from them, the men turned around with guns in their hands demanding their money. He testified that each man had a 9-millimeter gun in his hand. One of the gunmen concentrated on him and the other on his fianceé. Mr. Lesley gave the gunman his money and his watch, while his fianceé gave her purse to the gunman and then lay on the ground with her face in the opposite direction. Mr. Lesley further testified that the man who held the gun on him pulled the trigger, but it jammed and did not fire. Once the gunmen left, the couple went to a nearby home and called the police. He testified that he was shown a photographic line-up, and he positively identified both of the defendants as the men who robbed them.

Janet Meyer gave corroborating testimony. She also testified that she was unable to identify the defendants as the gunmen who robbed her and Mr. Lesley because she lay on the ground and did not get a good look at their faces.

Officer Karl Marshall, of the New Orleans Police Department, testified that on 27 December 1999, he was dispatched to a robbery scene at Alex and Sequin Streets in the Algiers area. Upon arrival on the scene Officer Marshall spoke to the victims, Chris Lesley and Janet Meyer. Mr. Lesley told Officer Marshall that two black males with guns robbed them. Mr. Lesley told him that the gunmen took thirty dollars from him, and Ms. Meyer gave them her purse.

Detective Troy Williams, of the New Orleans Police Department, testified that he noted a similarity between the robbery on 24 December 1999, and 27 December 1999, so he showed the photographic lineups from the Henderson robbery to Mr. Lesley and Ms. Meyer. Mr. Lesley positively identified both defendants from the line-up as the gunmen who robbed them. Ms. Meyer was unable make an identification.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to impose the defendants' sentences for attempted *45 armed robbery, armed robbery, and attempted second degree murder without the benefits of probation, parole, or suspension of sentence. Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restriction are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court. See State v. Williams, XXXX-XXXX (La.11/28/01), 800 So.2d 790. Hence, this court need take no action to correct the trial court's failure to specify that the defendants' sentences be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected. (La. R.S. 15:301.1A).

DISCUSSION

DEFENDANT SMITH'S ASSIGNMENT OF ERROR NUMBER 1

Smith complains that the trial court erred in denying his motion for mistrial because the State introduced inadmissible and irrelevant evidence, to-wit, the AK-47 clip found in the co-defendant's home. Specifically, Smith argues that the evidence had no probative value and its prejudicial effect deprived him of a fair trial.

Trial courts have great discretion in determining whether to grant a mistrial. Vicknair v. Dimitryadis, 93-0003 (La.App. 4 Cir. 1/13/94), 640 So.2d 275.

The New Orleans Police executed a search warrant of Wix's home and confiscated an empty ammunition box and an AK-47 clip. Smith argues that the AK-47 clip was irrelevant to this case because the victims of the alleged crimes did not state that an AK-47 was used in the perpetration of the crimes.

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Bluebook (online)
838 So. 2d 41, 2002 La.App. 4 Cir. 1493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wix-lactapp-2003.