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State v. Green

Court of Appeals of Louisiana, Fourth Circuit

May 3, 2017


         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 518-709, SECTION "H" Honorable Camille Buras, Judge.



          Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano.


         The defendant, Edward N. Green, appeals his convictions of three counts of armed robbery with a firearm and the sentences imposed by the trial court. For the reasons that follow, we affirm.

         On January 6, 2014, the State charged Mr. Green with the armed robbery with a firearm of three individuals, a violation of La. R.S. 14:64.3. At his arraignment Mr. Green pled not guilty. The trial court denied Mr. Green's motion to suppress the evidence and found probable cause. The case was tried before a jury on January 21 -22, 2015. The jury returned a unanimous verdict of guilty on all counts. Mr. Green filed motions for new trial and for post-verdict judgment of acquittal, which were denied. On June 26, 2015, the court sentenced Mr. Green to twenty years at hard labor on each of the three counts, plus an additional five years on each count for the use of a firearm, for a total of twenty-five years on each count, without benefit of probation, parole or suspension of sentence, with credit for time served, and ordered that the sentences be served concurrently.

         Mr. Green appeals his conviction and sentences, asserting three assignments of error:

(1) The evidence is insufficient to support the conviction;
(2)The trial court erred by denying the defendant's motion in limine to exclude from evidence two guns retrieved in a search of the defendant's residence; and
(3)The sentences imposed are excessive.


         In the early morning hours of July 5, 2013, the three victims: Matthew Merris (Matthew), Daniel Dilzell (Daniel) and Cecily Fogarty (Cecily), were at Cecily's house on Coliseum Street when they were robbed at gunpoint.

         Daniel testified that as he and Matthew were sitting and talking on the back porch of the house, he felt someone come up behind him. He turned and saw a light brown-skinned male, who had the lower portion of face covered with a shirt or bandana, standing in the porch doorway, pointing a gun in his face. Daniel recalled that the porch was well-lit the night of the robbery.

         Matthew testified that when he saw the man enter the porch, he initially did not think anything was amiss because he knew that another friend was supposed to stop by the Coliseum Street residence. However, as the man stepped into the light, Matthew noticed his dreadlocks and the Rasta-type hat he wore, and saw that he was wearing a mask and pointing a gun at them. The intruder demanded their money and cell phones. At that point, Daniel ran inside the house to alert Cecily and call the police. The robber ordered Matthew to get on the floor, and, as he did, Cecily came out onto the porch to see what was going on. The robber ordered Cecily back into the house and again demanded the money and the cell phones, which were sitting on a table on the porch. After taking the phones and money from Matthew, the intruder left. Matthew waited until he was sure the intruder was gone before he got up and ran back into the house.

         Cecily testified that she was inside her house at about 3:15 a.m. when she heard a loud commotion on the back porch. Moments later, Daniel ran into the house; he was frantic. She knew Matthew had been with Daniel on the back porch, so she decided to investigate. When she opened the door leading onto the porch, she saw Matthew crouched underneath the porch table. She then saw the intruder with the lower part of his face covered, pointing a gun at her. The robber put the gun to her head and ordered her back into the house. Cecily went back inside and called 911. She told the dispatcher that the robber was wearing a black hat and described the gun the robber was using as being a "gunmetal" color.

         New Orleans Police Department Detective Michael DiMarco investigated the armed robbery. Det. DiMarco contacted Matthew and obtained a physical description of the robber. Next, he spoke with Cecily, who gave a similar description. In the course of the investigation, the detective learned that iPhones belonging to Matthew, Daniel and Cecily, as well as $30.00 in cash, had been stolen during the robbery. Matthew asked the detective whether he should cancel his phone service. Det. DiMarco said no, telling Matthew to keep his phone service active because the police might be able to trace any calls made by the assailant. Thereafter, Matthew obtained his phone records and provided Det. DiMarco with a list of the phone numbers that had been called. Det. DiMarco singled out three calls that had not been made by Matthew. His investigation of the phone numbers to which these three calls had been placed led him to develop the defendant as a suspect.[1]

         Det. DiMarco searched the police database for the defendant's name and obtained a picture of the defendant. Thereafter, he located the defendant's address and obtained a search warrant for that location. Accompanied by other officers, Det. DiMarco executed the search warrant. The defendant's grandmother answered the door and directed the police to the defendant's bedroom. Det. DiMarco confiscated three cell phones, which belonged to the three victims of this armed robbery. The detective also recovered a black .380 Bersa semi-automatic handgun from atop a chest of drawers in the defendant's bedroom, a chrome and black BB gun, a black Rastafarian-style hat and a bank statement bearing the defendant's name.[2] Shortly thereafter, Det. DiMarco presented photo lineups to Matthew and Cecily, both of whom identified the defendant as the robber.[3] Based upon their identifications, Det. DiMarco obtained a warrant for Mr. Green's arrest. Officer Harold Nunnery arrested Mr. Green on November 6, 2013. Matthew and Cecily identified the defendant at trial as the person who had robbed them.


         A review for errors patent on the face of the record reveals none.


         In his first assignment of error, Mr. Green argues that the evidence presented at trial was insufficient to ...

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