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State v. Murray

Court of Appeals of Louisiana, Fourth Circuit

July 5, 2017

STATE OF LOUISIANA
v.
ROBERT MURRAY

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 513-907, SECTION "E" Honorable Keva M. Landrum-Johnson, Judge

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Scott G. Vincent ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR THE STATE OF LOUISIANA

          Holly Herrle-Castillo COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins.

          Roland L. Belsome Judge.

         Robert Murray appeals his convictions and sentences for conspiracy to commit armed robbery with a firearm and armed robbery. Murray was sentenced to ten years on each count. He also appeals the trial court's denial of his Motion for New Trial. For the reasons that follow, we reverse the denial of the motion for new trial and remand.

         STATEMENT OF THE CASE

         In November 2012, the State filed a bill of information charging Robert Murray with one count of armed robbery with a firearm and one count of conspiracy to commit armed robbery with a firearm. The State also charged Trent Mackey and Julian Haynes as Murray's co-defendants. In February 2013, the trial court granted the motion to sever trial for Mackey and Haynes.

         Murray pled not guilty to all charges. The trial court found probable cause and denied his Motions to Suppress Identification and Statement. In June 2013, Murray proceeded to a jury trial. He was convicted by a unanimous jury on both charges. Mackey was found not guilty in July 2013, after a jury trial, and the State subsequently entered a nolle prosequi as to the charges against Haynes in August 2013.

         Murray filed a motion for new trial in August 2013. In January 2016, he filed a Supplemental Motion for New Trial and a Motion for Judgment Notwithstanding the Verdict for the conspiracy conviction.

         The trial judge denied all post-trial motions, defense counsel waived delays and the trial court sentenced Murray to ten years on each count to run concurrently, with credit for time served. This appeal followed.

         ASSIGNMENTS OF ERROR

         Murray presents two assignments of error on appeal. First, he complains that the evidence is insufficient to prove his identity as a participant in the charged crimes. Second, he asserts that the trial court erred in denying his Motion for New Trial as newly discovered evidence demonstrates that the State's key witness against him committed perjury at trial.

         FACTUAL BACKGROUND

         In July 2012, Megan Wales called the police to report that she and her friend and co-worker Trent Mackey had been robbed at gunpoint by two men who had broken into her apartment on Broadway Avenue in New Orleans. She told the police that she heard noises outside, and when she opened the door to check two men burst into her apartment; one held a gun to her head and ordered her to lie down on the floor and ordered Mackey to face the wall. She reported that the men stole her cellphone, purse and laptop, and Mackey's cellphone before they fled on foot.

         Wales told police that she chased the robbers down Broadway Avenue while Mackey left the scene in his truck. She stated that when she caught up with the assailants and demanded her items back, they gave her back her phone and computer, but kept the other items. Wales described the assailants as medium-complected black males, between eighteen and twenty years old, approximately 5'8" to 5'10" in height, with clean haircuts.

         On the day of the robbery, Detective Swalm canvassed the neighborhood for video surveillance cameras, and learned from a neighbor that a dark color, small, four-door sedan, with no license plate had been captured on a home camera security system circling the block prior to the armed robbery. The video footage showed Murray's grey Chevy Cobalt[1] circling the 600 block of Audubon Street twice prior to the robbery.

         A few days after the robbery, Wales reached out to Detective Swalm. In this meeting she admitted that she was providing marijuana for Mackey when the robbery took place, and told him that the robbers had taken the marijuana along with the money from the sale. She also shared with Detective Swalm text messages from Mackey she had received prior to the robbery that she thought were suspicious. She returned to the police station with Detective Swalm where she made an official statement and aided the police in drafting a composite sketch of one of the alleged assailants.

         The detective obtained a subpoena for Mackey's phone records, and learned that he had been in contact with Murray prior to and on the day of the robbery. Mackey's records reflected phone calls with Wales and with a man named Julian Haynes[2] close to the time of the robbery as well.

         Detective Swalm used information from the phone records request to locate Murray in the FIC (field interview card) database, and discovered that he had been stopped in his grey Chevrolet Cobalt, which had on a temporary license tag. The detective subsequently prepared a six-person photographic line-up which contained Murray's photograph and presented the line-up to Wales. She positively identified Murray as one of the robbers.[3]

         Detective Swalm obtained a warrant for Murray's arrest for armed robbery. When the detective showed Murray the video footage of the Chevrolet Cobalt and informed him of Wales's positive identification of him as one of the perpetrators, he waived his Miranda rights and gave a recorded statement. In his statement, he said he was contacted by Julian Haynes, who told him that he knew Mackey, who knew someone with a large supply of marijuana for sale. Murray never admitted entering the victim's apartment, but did confirm that the Chevrolet Cobalt seen in the surveillance was his. Subsequent to his recorded statement, he identified Mackey from a six-person photo lineup. Shortly after, Trent Mackey and Julian Haynes were also arrested for participating in the robbery.

         Robert ...


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