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State v. Ross

Court of Appeals of Louisiana, First Circuit

September 21, 2017


         On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana No. 694, 860 The Honorable Juan Pickett, Judge Presiding.

          Joseph L. Waitz, Jr. District Attorney J. Christopher Erny Ellen Daigle Doskey Assistant District Attorney Houma, LA Attorneys for Plaintiff/ Appellee State of Louisiana

          John H. Thomas New Orleans, LA Attorney for Defendant/ Appellant Donald Ross


          HOLDRIDGE, J.

         The defendant, Donald Javon Ross, was charged by bill of information with armed robbery with the use of a firearm, a violation of Louisiana Revised Statutes 14:64 and l4:64.3(A) (count one), and possession with intent to distribute a Schedule I controlled dangerous substance (marijuana), a violation of Louisiana Revised Statutes 4O:966(A)(1). He pled not guilty to both counts and filed a motion to suppress his confession, which was denied. Following a jury trial, the defendant was found guilty as charged on both counts. He filed a motion for postverdict judgment of acquittal, which was denied.

         The defendant was then sentenced to a term of imprisonment of twenty years at hard labor without the benefit of probation, parole, or suspension of sentence with an additional penalty of five years at hard labor without the benefit of probation, parole, or suspension of sentence pursuant to Section l4:64.3(A) on count one. On count two, the defendant was sentenced to five years at hard labor. The court ordered the sentences on counts one and two to run concurrently. The defendant filed a motion to reconsider sentence. The district court then amended the defendant's sentence as to count one, ordering that the defendant serve fifteen years at hard labor with an additional penalty of five years pursuant to Section l4:64.3(A), for a total of twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.[1] The district court ordered the amended sentence on count one to run concurrently with the previously imposed sentence on count two. The State orally objected to the amended sentence and made an oral motion to reconsider sentence, which was subsequently dismissed by the State's motion. The defendant now appeals, challenging the denial of his motion to suppress. For the following reasons, we affirm the defendant's convictions and sentences.


         On February 19, 2015, shortly after 10:00 a.m., Deputy Carter Fontenot with the Terrebonne Parish Sheriffs Office responded to an armed robbery call at a Chevron gas station located at 5912 West Main Street in Houma, Louisiana. Upon arrival, Deputy Fontenot made contact with Abdulla Hussein, the victim, who provided a description of the offender as well as a license plate number of the vehicle that he observed leaving the gas station. The victim indicated that he believed, but was not positive, that the offender was the same person who had come into the store approximately thirty minutes prior to the robbery to purchase a cigar. At that time, the victim was removing money from his safe and thought that the person purchasing the cigar saw him counting the money. According to the victim, approximately thirty minutes later, the offender walked into the store holding a gun and said, "I want the money. . . All the money you take [sic] from the safe." The offender then took the money from the victim's pockets, pointed a gun to his leg, and demanded that he let him enter the gas station's office. After approximately fifteen minutes, another customer drove up to the gas station, and the offender ran. The victim described the offender as a black male who was approximately five feet, eleven inches tall, and weighed approximately one hundred fifty or one hundred seventy pounds. The victim stated that the person who robbed him was wearing a makeshift mask that covered his face during the robbery. The deputy immediately ran the license plate number given to him by the victim through dispatch and learned that the defendant was listed as its registered owner.

         Deputy Fontenot proceeded to the address listed for the defendant where he met Detective Malcolm Wolfe and Captain Dawn Foret. Detective Cody Voison was also at the residence and briefly spoke with subjects Amos Washington, Kerry Lyons, Richard Shelby, and Alexander Barrow. Neither the defendant nor the vehicle registered to him were at the residence, but Deputy Fontenot noticed that Lyons matched the description of the offender given by the victim. Once Detective Voison arrived at the residence, Lyons was placed in handcuffs and advised of his Miranda rights.[2] Lyons was transported to the Chevron gas station, where the victim identified him as the individual who purchased a cigar prior to the armed robbery. The victim believed the individual who purchased the cigar was the same individual who robbed him. Lyons was then transported to the sheriffs office.

         Shortly thereafter, Deputy Fontenot was ordered to return to the defendant's residence to transport the defendant to the sheriffs office. When Deputy Fontenot returned to the residence, the defendant and the vehicle matching the description and license plate number given by the victim were present. The deputy transported the defendant to the sheriffs office and brought him into the interview room. Under the supervision of Detective Wolfe, Lyons was permitted to speak to the defendant. The defendant subsequently confessed to committing the robbery.

         A search of the defendant's residence was conducted and a handgun magazine as well as approximately sixty-seven grams of marijuana were located. The defendant testified that he threw the money out of his window while driving because he "got scared[.]"


         In his sole assignment of error, the defendant argues that the district court erred in denying the motion to suppress his confession. Specifically, the defendant contends that his confession was not free and voluntary because it was "made under duress of fear for his family's safety[.]" According to the defendant, ...

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