APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 500-981, SECTION " G" . Honorable Julian A. Parker, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Supervising Attorney, Donald G. Cassels, III, Assistant District Attorneys, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE /STATE OF LOUISIANA.
J. Thomas Beasley, Attorney at Law, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
Court composed of Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Sandra Cabrina
JOY COSSICH LOBRANO,
[2013-1401 La.App. 4 Cir. 1] Defendant Troy Ellis was charged in count two of a bill of information with simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. Following a trial, the twelve-person jury found defendant guilty as charged, and the trial court sentenced him to twelve years at hard labor. Defendant appealed, raising six assignments of error. Finding no reversible error, we affirm defendant's conviction and sentence.
The testimony and evidence in the record discloses the following.
Charles Napoli owned a mixed use, two-story building. Charles' son, Jason Napoli, an assistant district attorney with the Orleans Parish District Attorney's Office, resided with his fiancé e in an apartment on the second floor on the building. To obtain entry into the apartment, there was an exterior door on the ground floor that opened to a staircase leading to a door to the apartment; both doors had locks.
[2013-1401 La.App. 4 Cir. 2] On August 17, 2010, at 2:30 a.m., Jason awoke to the beeping of his apartment alarm and discovered the apartment door slightly ajar. He looked outside, saw nothing amiss, so he closed the door and went back to sleep. At 6:00 a.m., he awoke and left the apartment. When he returned an hour later, his fiancé e informed
him that her laptop was missing. Jason then realized his wallet had been stolen and called the police to report the burglary. While waiting for the police, Jason got " online" and discovered that someone had made several unauthorized purchases with his debit card. Shortly thereafter, New Orleans Police Department (NOPD) Officer Troy Dalliet arrived at the scene and learned from Jason that a wallet and a laptop computer were missing, although there were no signs of forced entry into the apartment. After Officer Dalliet had completed the initial police report and left, Jason discovered that his baseball card collection, which he had stored in a suitcase in the second bedroom, was also missing.
Meanwhile, Charles Napoli obtained a list of the three local service stations - one Shell and two Chevron - where Jason's debit/credit card had been used that morning and forwarded it to the police. He also went to the three stations to inquire about video surveillance cameras and learned that the Chevron station on Jefferson Davis Parkway had video footage. He then went to the Sixth District Police Station, where he met with NOPD Detective Andrew Waldron and gave him that information.
Charles Napoli knew that another tenant in his building had been burglarized six months earlier, and the perpetrator of that burglary was the tenant's employee. [2013-1401 La.App. 4 Cir. 3] He told Detective Waldron that he had spoken to the tenant's employee and learned that the burglars of his son's apartment were allegedly an African-American male named " Troy," who had done odd jobs for him in the past, and a younger white male named " Packy" (Patrick Constantin). Charles Napoli also informed Detective Waldron that Jason's baseball card collection was missing from the apartment, a fact not mentioned in the original NOPD incident report.
Detective Waldron called Markman Sports Cards & Collectibles, a store in Metairie that handled baseball cards, and spoke to Mark Channing, the owner. He learned from Channing that two men, an older African-American male and a younger white male, had gone into the store between August 17 and August 20 to sell baseball cards and that Channing had purchased the cards for $80.00.
Detective Waldron then went to the Chevron station on Jefferson Davis Parkway to review the surveillance video; it showed a white male enter the store, followed by an older African-American male. Detective Waldron recognized the white male as his former elementary school classmate Patrick Constantin, but he did not know the other male. He ran Constantin's name and discovered there was an attachment for his arrest.
On August 24, 2010, NOPD Officer James Weir conducted a routine traffic stop of a vehicle; defendant was the driver, and Constantin was a passenger. After running their names through the N.C.I.C. database, Officer Weir discovered that an attachment had been issued for Constantin's arrest, and he arrested him. When Detective Waldron learned that Constantin was in police custody, he transported [2013-1401 La.App. 4 Cir. 4] Constantin to the Sixth District Police Station where he read him his Miranda rights. Constantin waived his rights and gave a statement, admitting the details of the burglary and implicating the defendant. Detective Waldron subsequently obtained a warrant for the defendant's arrest. Defendant was arrested and taken into police custody.
The following day, Detective Waldron went to Markman Sports Cards & Collectibles and presented two photo lineups to Channing. In the first, Channing immediately
selected photo number five, a photo of Constantin, but when presented with the second lineup, he took two minutes to select photo number six, a photo of the defendant. Channing said that although he had given the money for the cards to Constantin, both men had participated in the sale and had told him they would split the money.
Detective Waldron confirmed that the crime lab did not find defendant's fingerprints in Jason Napoli's apartment; the police had no surveillance video of the defendant in the apartment; and the police never recovered any property from the defendant.
Constantin, who was incarcerated in Orleans Parish Prison at the time of trial, had agreed to testify for the State. He said that he had a vague recollection of the August 17, 2010 burglary because it had occurred more than one and one-half years earlier, and he had been on drugs at the time. Constantin identified the defendant in court, saying that he knew him " a little bit," and confirmed that he and the defendant took part in a burglary, breaking into the building with a flathead [2013-1401 La.App. 4 Cir. 5] screwdriver. Constantin said that the defendant had chosen the location of the burglary; he remembered riding there with him; and he thought they both knew the owner of the building. Constantin recalled that he was alone for the majority of the time during the course of the burglary; he went into the second bedroom and stole the baseball card collection while the defendant went into the other rooms and took the laptop and wallet. He said the defendant came to him in the second bedroom to alert him that someone was inside the apartment.
Constantin admitted that, after the burglary, he and the defendant went to a Chevron station, where he used the stolen debit/credit card. He said he called several shops that sold baseball cards, and he and the defendant went to the shop in Metairie, where he sold the baseball cards to the shop owner. He testified that the defendant decided to sell the stolen laptop at a bar near Louisiana and S. Claiborne Avenues. Constantin said the defendant went into the bar to sell the laptop while he remained in the car, because he did not know the intended purchaser. Constantin admitted to being arrested on an outstanding warrant by Officer Weir during a traffic stop of defendant's vehicle, wherein he was a passenger.
Constantin verified that he had gone to elementary school with Detective Waldron. He admitted pleading guilty simultaneously to the burglary in the instant case, to two other simple burglaries, and two counts of theft over five hundred dollars. He said his total sentence was six years, which he said meant that he would have to serve two years and nine months in prison. Constantin admitted that [2013-1401 La.App. 4 Cir. 6] he had one prior conviction from 2007, for which he had received two years of probation.
Constantin claimed he had given the statement to the police because Detective Waldron had told him that if he testified, then maybe there was a possibility that " they could help him out or something." He said that he was forthright with Detective Waldron because he felt guilty for the things he had done and wanted to turn his life around. Constantin said that he " probably" was having " slight" drug withdrawal symptoms when he gave his statement to Detective
Waldron six days after he was arrested on the traffic attachment. Constantin said that Detective Waldron did not make any promises to him for his testimony. He admitted that he pled guilty because the State offered him a plea bargain. When asked on redirect examination whether Detective Waldron had ever told
him that if he gave a statement implicating another person, the detective might be able to help him, Constantin replied: " Yes. I mean, I think he said that he might be able [sic]. I mean, there's a possibility he could talk to the judge or, you know, something like that. I don't know." However, Constantin said Detective Waldron had never suggested any names to him or told him whom to implicate.
Detective Waldron, recalled as a witness by the State, testified that he had told Constantin that he could help himself by taking responsibility for his actions and coming clean about everything.
Defendant neither testified at trial nor presented any witnesses on his behalf.
[2013-1401 La.App. 4 Cir. 7] ERRORS PATENT
A review of the record reveals two errors patent on the face of the record. First, the face of the record (the docket master and minute entries) does not reflect that defendant was arraigned. On the first day of trial, January 11, 2012, after the jury had been selected and sworn, the trial court entertained a motion for mistrial by defense counsel based on the failure to arraign defendant. The prosecutor read from a minute entry from the case when it was in Section " J" of the Orleans Parish Criminal District Court, apparently under a different case number, and prior to it being transferred to Section " G." The prosecutor read for the record from the September 14, 2010 minute entry that defendant had appeared for arraignment, and counsel had stood in for arraignment only. However, the prosecutor did not read for the record that a plea had been entered at the arraignment. In any case, the trial court denied the motion for a mistrial, noting that the Code of Criminal Procedure did not support the granting of a mistrial.
La. C.Cr.P. art. 555 states that " [a] failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty." Also, where a defendant is present at arraignment and fails to plead, a plea of not guilty shall be entered. La. C.Cr.P. art. 554. Thus, it is unlikely that defendant would have been arraigned without a plea having been entered, either by him or by the court. Also, although defendant objected to a failure to arraign him by moving for a mistrial, he does not raise the denial of that motion for mistrial as an error on appeal. Any error regarding defendant's arraignment is harmless beyond a reasonable doubt.
[2013-1401 La.App. 4 Cir. 8] As to the second error patent, the trial court failed to stipulate that one year of defendant's sentence be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:62.2 states:
Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence, nor more than twelve years.
In State v. Boowell, 406 So.2d 213 (La. 1981), the defendant pleaded guilty to two counts of simple burglary of an inhabited dwelling and was sentenced on each count to three years at hard labor without benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently. On appeal, the defendant argued that the statute clearly required that " only the minimum sentence include the ineligibility provision," and that a legal sentence would have been concurrent terms of three years at hard labor on each count, " with the defendant deemed ineligible for parole, probation or suspension of sentence, during the first year." Boowell, 406 So.2d at 215.
The Louisiana Supreme Court stated:
The trial court interpreted La. R.S. 14:62.2 as requiring that the defendant be sentenced up to twelve years without benefit of parole, probation or suspension of sentence. As written, the sentencing provision of La. R.S. 14:62.2 is ambiguous. Either the interpretation of the trial court or that of defense counsel could be considered reasonable.
Id. at 216. Strictly construing the ambiguous penal provision in favor of the defendant, the court found the sentence was illegal and remanded the case for resentencing.
In State v. Conley, 411 So.2d 448 (La. 1982), the defendant pleaded guilty to simple burglary of an inhabited dwelling and was sentenced to three years at hard labor without benefit of parole, probation, or suspension of sentence. On [2013-1401 La.App. 4 Cir. 9] appeal, the defendant contended " that the trial court erred in denying the accused eligibility for probation, parole, or suspension of sentence for the entire term of his sentence." Conley, 411 So.2d at 449. The Louisiana Supreme Court cited its decision in Boowell, supra, stating that in Boowell it " accepted the defendant's contention that the ineligibility provision should attach only to the statute's minimum one-year term." Id. The court in Conley thus found that the sentence imposed was clearly illegal, vacated it, and remanded the case for further proceedings.
In State v. Martin, 599 So.2d 422 (La.App. 4th Cir. 1992), the defendant pleaded guilty to simple burglary of an inhabited dwelling and was sentenced to twelve years at hard labor without benefit of parole. He was subsequently adjudicated a fourth-felony habitual offender and was resentenced to twenty years at hard labor, without benefit of parole for the first twelve years. On appeal this court vacated the habitual offender adjudication and sentence, and remanded the case for resentencing. This court noted in a footnote that the original sentence should not be reinstated because it contained an error patent rendering it illegally severe, citing Conley, supra, and Boowell, supra, for the proposition that the Louisiana Supreme Court " has construed the ineligibility for parole, probation or suspension of sentence provision found in R.S. 14:62.2 to attach only to the statute's minimum one year term." Martin, 599 So.2d at 425, n.1.
Thus, this court has followed the Louisiana Supreme Court in interpreting the sentencing provision in La. R.S. 14:62.2 as requiring that the first year of any sentence imposed under that statute be served without benefit of parole, probation, or suspension of sentence. In State v. Jones, 2012-0510, pp. 6-7 (La.App. 4 Cir. 6/12/13), 119 So.3d 859, 863, this court noted that La. R.S. 15:301.1(A) self-activates [2013-1401 La.App. 4 Cir. 10] the correction of the patent error in the instant case--the trial court's failure to stipulate that the first year of a sentence under La. R.S. 14:62.2 be served without benefit of parole, probation, or suspension of sentence--thus eliminating the need to remand the case for a ministerial correction of the sentence.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant argues that the evidence was insufficient to support his conviction.
" When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." State v. Marcantel, 2000-1629, p. 8 (La. 4/3/02), 815 So.2d 50, 55, citing State v. Hearold, 603 So.2d 731, 734 (La. 1992).
This court set forth the well-settled standard of review for sufficiency of the evidence in Sta ...