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State v. Brown

Court of Appeals of Louisiana, Fourth Circuit

May 3, 2017

STATE OF LOUISIANA
v.
JARVIS BROWN

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-744, SECTION "I" Honorable Karen K. Herman, Judge

          LOMBARD, J., CONCURS Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY, ORLEANS PARISH Donna Andrieu Assistant District Attorney J. Taylor Gray Assistant District Attorney

          COUNSEL FOR STATE OF LOUISIANA/APPELLEE Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel J. Broussard, Pro Tempore

          Rosemary Ledet Judge

         In this criminal appeal, the defendant, Jarvis Brown, seeks review of his convictions and sentences for armed robbery, possession of marijuana, and access device fraud. For the reasons that follow, we affirm his convictions, vacate his sentences on the armed robbery convictions only, and remand for resentencing. In all other respects, his sentences are affirmed.

         STATEMENT OF THE CASE

         On June 20, 2014, the State filed a bill of information charging Mr. Brown with the following:

• Three counts of armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3;
• One count of possession of marijuana, in violation of La. R.S. 14:34.2; and
• One count of access device fraud, in violation of La. R.S. 14:70.4(E)(3).

         On June 26, 2014, Mr. Brown was arraigned; he pled not guilty. On that same day, the district court appointed an attorney, Nandi Campbell, to represent Mr. Brown.

         On August 21, 2014, Ms. Campbell requested a competency hearing. On September 11, 2014, a mental competency hearing was held. Accepting the doctors' recommendation, the district court found Mr. Brown competent to stand trial. At the conclusion of the hearing, Mr. Brown requested to represent himself. The district court granted Mr. Brown's request to represent himself with Ms. Campbell as his advisor.

         On October 24, 2014, Mr. Brown appeared for a hearing on his motions to suppress evidence, statement, and identification, which were previously filed by Ms. Campbell. At the hearing, Mr. Brown informed the district court that he did not want Ms. Campbell as his advisor. At the conclusion of the hearing, the district court denied Mr. Brown's motions to suppress evidence, statement, and identification.

         On November 10, 2014, the district court granted Ms. Campbell's motion to withdraw as counsel of record. Subsequently, Sierra Thompson, an attorney with the Orleans Public Defender, was appointed as his advisor.

         On November 5, 2015, a second mental competency hearing was held. Accepting the doctors' recommendation, the district court found Mr. Brown competent to stand trial.

         On March 21 and 22, 2016, a jury trial was held on the three counts of armed robbery and a bench trial was held on the misdemeanor charges- possession of marijuana and the access device fraud. Mr. Brown was found guilty as charged on all the offenses. The district court sentenced Mr. Brown to sixty years at hard labor without benefit of parole, probation, and suspension of sentence on each count of armed robbery to be served concurrently with all other sentences. The district court also sentenced Mr. Brown to six months on each misdemeanor conviction to be served concurrently with all other sentences.[1] The district court denied Mr. Brown's Motions for New Trial and to Reconsider Sentence. This appeal followed.

         STATEMENT OF THE FACTS

         On April 23, 2014, between 3:30 and 4:00 p.m., three victims-Michael Retif, Linda Hammerstein, and Kristina Fortier-were robbed at gunpoint in the Lakeview area of New Orleans. For ease of discussion, we divide our analysis of the facts into the following two sections: the robberies and the investigation.

         The Robberies

         The victim of the first robbery, Mr. Retif, was renovating a house on the corner of Harrison Avenue and Duplessis Street. While working on the house, he noticed a green truck driving in circles around the block. Later that day, around 3:30 p.m., Mr. Retif was on a ladder scraping windows when he felt a tug on his pants pocket. When he turned around, Mr. Retif saw a young black man-later identified as Mr. Brown-pointing a gun at him. Mr. Brown demanded his wallet. Mr. Brown reached into Mr. Retif's pockets and removed his wallet and cell phone. After dropping the cell phone, Mr. Brown grabbed the wallet and ran. Mr. Brown then entered the passenger side of a green Chevrolet truck with Texas license plates, which sped away. Mr. Retif called 911 to report the incident.[2]

         Around the same time, Ms. Hammerstein was sitting on the porch of her Porteous Street residence watching her dog and exchanging text messages with her sister. She noticed a green truck pass her residence and then back up very quickly. A man emerged from the passenger's side of the truck, approached Ms. Hammerstein, pointed a gun to her head, and demanded her cell phone. After Ms. Hammerstein relinquished her cell phone, the robber entered the passenger side of the green truck and it sped away. Ms. Hammerstein then called 911 from her residence phone and described the robber as wearing a white T-shirt and blue jeans.

         Also around the same time, Ms. Fortier arrived at her home in the 6500 block of General Diaz Street with her two children-a two year old son and five year old daughter. Ms. Fortier was returning from picking up her children from school. As Ms. Fortier was removing her children from her vehicle, she noticed an older model green truck speed down Porteous Street and turn onto General Diaz Street. A black man wearing a bandana over part of his face exited the passenger's side of the truck, and ran towards Ms. Fortier and her children. While pointing a gun at them, the robber demanded her purse. Ms. Fortier threw her purse- containing her wallet, cell phone, and several credit cards-and her keys towards the robber. The robber gathered the items and ran back to the truck. As Mr. Fortier watched the green truck fleeing the neighborhood, she noticed that it had Texas license plates. Immediately thereafter, Ms. Fortier flagged down a passing motorist, who was already on the phone with the police reporting the robbery.

         The investigation

         NOPD Detectives Stephen Kriebel and Roy Shackelford were patrolling the area when they received notice of the trio of armed robberies, which occurred within about a fifteen minute period. Detectives Kriebel and Schackelford relocated to the General Diaz Street address.[3] Shortly thereafter, the detectives were notified by an officer at the Porteous Street address that the victim, Ms. Hammerstein, was tracking the location of her stolen cell phone, an iPhone, using the "Find my iPhone" application.

         NOPD Detective Russell Green was also in the area when he received the dispatch about the three robberies. Detective Green was informed that the tracking information indicated that Ms. Hammerstein's iPhone stopped moving around Iberville Street and Marais Street. Based on that information, Detective Green relocated to that area. He found the unoccupied, green truck parked in the area of Iberville Street and North Villere Street. After notifying the other police units of the truck's location, he set up surveillance around the green truck. Detectives Kriebel and Schackelford also relocated to that location.

         Shortly thereafter, Detective Green observed three men, one of whom was identified as Mr. Brown, approaching the truck and notified other officers in the surveillance team. After the men entered the truck, NOPD surrounded the truck. The men were removed from the truck and arrested. Mr. Brown was removed from the driver's seat and several cell phones and credit cards were recovered from his pockets. The following items were removed from the interior of the truck: two firearms (one in the front seat and the other in the back seat), a camouflage hat, a red handkerchief, a black and white bandana, Mr. Retif's bank debit card (in the back seat), and a small amount of marijuana (in the front seat).[4]

         Later during the day of the robberies, Mr. Retif went to the police station. He identified the green truck as the getaway vehicle used in the robbery. Detective Shackelford presented Mr. Retif with three separate photographic lineups. Mr. Retif identified Mr. Brown as the man who robbed him.[5]

         In the days following robberies, Detective Kriebel spoke with the other two victims, Ms. Hammerstein and Ms. Fortier. Neither of the other victims were able to identify the robber from the photographic lineups. Both of the other victims were able to identify the green truck used in the robbery. Furthermore, Ms. Fortier reported that shortly after the robbery an unauthorized charge for the purchase of gasoline was made on her stolen American Express credit card.

         Detective Kriebel later relocated to the gas station where Ms. Fortier's credit card was used. He spoke to the owner and viewed the video surveillance from the gas station.[6] Detective Kriebel also obtained the gas station's computer printout of the receipts for April 23, 2014, which shows that $40.36 was charged on Ms. Fortier's American Express credit card to purchase gasoline. One of the gas station employees found Ms. Fortier's purse in a trash can and turned it over to police. Mr. Retif's wallet was found inside Ms. Fortier's purse.

         DISCUSSION

         Errors Patent

         A review of the record for errors patent reveals two. The first error patent is that in the bill of information, the State invoked the firearm provision of La. R.S. 14:64.3, which provides that when a firearm is used in the commission of an armed robbery the "offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence." Id. At the sentencing hearing, the district court sentenced Mr. Brown to sixty years at hard labor without the benefit of probation, parole, and suspension of sentence for each of the three convictions for armed robbery with a firearm. The district court did not, however, specify whether Mr. Brown's sentences included the mandatory additional five years imprisonment pursuant to La. R.S. 14:64.3(A). This court has held that a sentence is indeterminate when it fails to impose the additional five-year enhancement as required by La. R.S. 14:64.3. State v. Amos, 15-0954, pp. 5-6 (La.App. 4 Cir. 4/6/16), 192 So.3d 822, 827; see also State v. Burton, 09-0826, p. 3 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076 (finding the failure to impose the mandatory additional five years imprisonment pursuant to La. R.S. 14:64.3(A) illegally lenient). We thus vacate Mr. Brown's sentences for the three armed robbery convictions and remand for resentencing for the imposition of the additional punishment as mandated by La. R.S. 14:64.3(A).

         The second error patent involves the access device fraud portion of the State's bill of information. The penalty for access device fraud depends upon the amount of money misappropriated. See La. R.S. 14:70.4.[7] "Value, price, or amount of damage need not be alleged in the indictment, unless such allegation is essential to charge or determine the grade of the offense." La. C.Cr.P. art. 470. Thus, the failure to allege the amount misappropriated in the bill of information is an error.

         The error, however, was harmless under the facts of this case. See La. C.Cr.P. art. 921; State v. Guidry, 93-1091 (La.App. 1 Cir. 4/8/94), 635 So.2d 731, 735-36 (finding that the failure to allege the value of the property damaged in a bill of information charging a violation of the graded offense of simple arson was harmless and did not require vacating). Although the bill of information fails to allege the misappropriated amount, Mr. Brown's application for bill of particulars fails to request any information concerning the amount. Additionally, the docket master indicates that Mr. Brown was charged with one count of "La. R.S. 14:70.4(E)(3) Access Device Fraud < $500.00." During trial, Mr. Brown was apprised that the amount of the funds misappropriated was less than $500.00. As noted above, Detective Kriebel identified the gas station's computer printout of the receipts from April 23, 2014, which showed that $40.36 was charged to Ms. Fortier's stolen credit card. At the conclusion of the trial, the district court sentenced Mr. Brown to six months on the access device fraud, which is within the guidelines of La. R.S. 14.70(E)(3). Furthermore, Mr. Brown has not alleged, nor can he show, any prejudice from the State's failure to include in the bill of information the amount of the funds misappropriated under La. R.S. 14:70. Accordingly, the error is harmless under the facts of this case.

         Pro Se Assignment of Error Number 5

         Mr. Brown's fifth pro se assignment of error is sufficiency of evidence. He contends that his convictions were based on circumstantial evidence-that he was arrested in a green truck similar to the vehicle used during three armed robberies and two guns and stolen property were found in the truck. In accordance with the well-settled jurisprudential rule, we address this sufficiency of evidence claim first. State v. Miner, 14-0939, p. 5 (La.App. 4 Cir. 3/11/15), 163 So.3d 132, 135 (quoting State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Marcantel, 00-1629, p. 8 (La. 4/3/02), 815 So.2d 50, 55) (quoting Hearold, supra) ("=[w]hen 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.'")

         In addressing sufficiency of evidence, appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As the Louisiana Supreme Court stated in State v. Pigford, 05-0477, pp. 5-6 (La. 2/22/06), 922 So.2d 517, 520-21, the standard is as follows:

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La. 1984). This standard, now legislatively embodied in La. C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact-finder. State v. Robertson, 96-1048, p. 1 (La. 10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La. 1990). A reviewing court may intervene in the trier of fact's decision only to the extent necessary to guarantee due process of law. State v. Mussall, 523 So.2d 1305, 1310 (La. 1988). Accordingly, in cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant's guilt beyond a reasonable doubt. State v. Lee, 01-1080, p. 12 (La. 11/28/01), 800 So.2d 833, 841; Captville, 448 So.2d at 678.

Id.

         An appellate court neither assesses the witnesses' credibility nor reweighs evidence. State v. Sparkman, 08-0472, p. 6 (La.App. 4 Cir. 1/28/09), 5 So.3d 891, 895 (citing State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443). Furthermore, when addressing the credibility of witnesses, this court has noted the following:

The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Brown, 12-0853, p. 2 (La.App. 4 Cir. 2/6/13), 109 So.3d 966, 968 (citing State v. Holmes, 06-2988, p. 34 (La. 12/2/08), 5 So.3d 42, 68; State v. Vessell, 450 So.2d 938, 943 (La. 1984)). "It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence." State v. Richards, 11-0349, p. 9 (La.App. 4 Cir. 12/1/11), 78 So.3d 864, 869 (citing State v. Cummings, 668 So.2d 1132 (La. 1996); State v. Rosiere, 488 So.2d 965, 968 (La. 1986)).
In the absence of internal contradiction or an irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Rapp, 14-0633, pp. 6-7 (La.App. 4 Cir. 2/18/15), 161 So.3d 103, 108 (citing State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369). When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of credibility of the witness, the matter is one of the weight of the evidence, not its sufficiency. State v. Edgar, 12-0744, p. 16 (La.App. 4 Cir. 9/18/13), 140 So.3d 22, 34 writ denied, 13-2452 (La. 4/4/14), 135 So.3d 638 (citing State v. Allen, 94-1895, p. 7 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, 1084).

State v. Barbain, 15-0404, pp. 8-9 (La.App. 4 Cir. 11/4/15), 179 So.3d 770, 776-77, writs denied, 15-2213, 15-2179 (La. 4/4/16), 190 So.3d 1201, 191 So.3d 578; see also State v. Neal, 00-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657 (citing State v. Mussall, 523 So.2d 1305, 1311 (La. 1988)) (finding that a positive identification by only one witness is sufficient to support a conviction).

         Mr. Brown contends that his armed robbery and access device fraud convictions are based on insufficient evidence.[8] We separately address each conviction.

         Armed robbery with a firearm

         To sustain a conviction of armed robbery with a firearm, the State must prove beyond a reasonable doubt that the defendant (1) took something "of value belonging to another from the person of another or that is in the immediate control of another, by force or intimidation, while armed with a dangerous weapon;" and (2) that the "dangerous weapon used in the commission of the crime of armed robbery is a firearm." La. R.S. 14:64(A) and 14:64.3(A); see also Amos, 15-0954 at p. 11, 192 So.3d at 829.

         Contrary to Mr. Brown's contentions, there was sufficient evidence to support his convictions. As the State points out, Mr. Retif identified Mr. Brown in a photographic lineup as the individual who robbed him at gunpoint. Mr. Retif also testified at trial that Mr. Brown held him at gunpoint, removed his cell phone and wallet from his pants, and then fled the scene in a green Chevrolet truck with Texas license plates. He further testified that nothing obscured his view of Mr. Brown's face during the armed robbery and that he recalled the robber had big, round eyes. Although neither Ms. Hammerstein ...


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