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
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Terrel J. Broussard, Pro Tempore
Rosemary Ledet Judge
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
OF THE CASE
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.
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.
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.
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.
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.
November 5, 2015, a second mental competency hearing was
held. Accepting the doctors' recommendation, the district
court found Mr. Brown competent to stand trial.
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. The district court denied Mr. Brown's
Motions for New Trial and to Reconsider Sentence. This appeal
OF THE FACTS
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
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
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
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.
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. 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.
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.
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
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.
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.
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. 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.
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).
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. "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.
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.
Se Assignment of Error Number 5
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
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
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
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.
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
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
Brown contends that his armed robbery and access device fraud
convictions are based on insufficient evidence. We separately
address each conviction.
robbery with a firearm
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.
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.