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State v. Bartley

Court of Appeals of Louisiana, Fourth Circuit

October 11, 2017

STATE OF LOUISIANA
v.
JAMAL BARTLEY

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

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Chief of Appeals Assistant District Attorney J. Taylor Gray Assistant District Attorney PARISH OF ORLEANS COUNSEL FOR PLAINTIFF/APPELLEE.

          Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore).

          Marion F. Edwards, Pro Tempore Judge.

         Defendant, Jamal Bartley, appeals his convictions and sentences on four charges of criminal activity. For reasons that follow, we affirm the convictions on all four charges. We vacate the sentences on all four convictions and remand the matter for resentencing in accordance with this opinion.

         On June 20, 2014, the State filed a Bill of Information charging Bartley with four counts of armed robbery with a firearm in violation of La. R.S. 14:64.3.[1]Bartley pled not guilty at his arraignment on June 26, 2014. On October 24, 2014, the court found probable cause for the charges and denied the defendant's motions to suppress the statement and identification. On May 25, 2016, a jury found Bartley guilty as charged on count one, and returned responsive verdicts of guilty of attempted armed robbery with a firearm on the other three counts. After defense motions for new trial and post-verdict judgment of acquittal were denied, the court sentenced Bartley to thirty-five years on count one and to seven-and-a-half years on each of the other three counts, all terms to run concurrently. The trial court denied Bartley's motion to reconsider the sentence, and granted a timely motion for appeal.

         FACTS

         On April 23, 2014, New Orleans Police detectives investigated four armed robberies. One that occurred in the early morning hours in the Marigny and three that occurred in the afternoon in Lakeview. The description of the robbers matched in all four robberies. Cooperative investigations among detectives resulted in the arrest of three suspects later that day.

         The first victim was Robert Boulanger, who was walking home alone at about 2:30 a.m. on April 23, 2014. He was listening to music through headphones and he was holding a beer. He noticed three men standing across the street. They ran up to him and two of the men pointed guns at him. One of the men pointed a gun at his chest and demanded his backpack, which contained training material from his job, his ID and keys. Mr. Boulanger called 911 and shortly afterward, spoke with Detective Flores who investigated the crime. Mr. Boulanger told Detective Flores the robbers were three black men with dreads. Two of the men drew guns and pointed them at him.

         The second robbery victim was Michael Retiff, who was working on the remodel of a house in Lakeview in the afternoon of April 23, 2014. He was on a ladder scrapping windows when he noticed a green truck pass by the house twice. When he felt something tugging on his pants pocket, Mr. Retiff turned to see a man pointing a gun at him. The man said "give me your wallet." After Mr. Retiff gave the man his wallet, the gunman got into the front passenger seat of the green truck. The truck took off and Mr. Retiff called 911. Subsequently, Mr. Retiff went to the Third District Police Station to view photos. The man he identified as the gunman was Jarvis Brown. Mr. Retiff testified that he did not see Bartley.

         Shortly afterward, Linda Hammerstein, a Lakeview resident, was sitting on her front porch one afternoon in April of 2014 when she noticed a green truck with an out-of-state license plate drive past her home. The truck stopped and backed up. Thinking the driver was seeking directions, Ms. Hammerstein was not alarmed at first. However, a man, whose face was covered with a bandanna got out of the car with a gun and demanded her cell phone. Ms. Hammerstein gave up her phone and the man got back into the front passenger seat of the truck and the truck drove off. Mr. Hammerstein went inside and dialed 911. She was able to track her phone by way of an app on her computer. She gave the location information to police officers.

         Kristina Forshee returned to her home in Lakeview after picking up her two small children from school about 3:00 p.m. on April 23, 2014. As she was getting them out of the car she noticed a green truck speeding down the street. The truck came to an abrupt stop next to her car. A man got out of the passenger seat of the truck with a gun and ran, pointing the gun at her and her daughter. He said, "give me your purse, give me your stuff." Ms. Forshee threw her purse and keys in the robber's direction. The robbery picked the items up and ran back to the truck. He got in and the truck drove off. A woman driving by called 911 and followed the truck. A neighbor also called police. Ms. Forshee learned from one of her credit card companies that her card was used at a gas station on Tulane Avenue. She gave that information to detectives investigating the crime. Subsequently, she was called to the Third District to retrieve her stolen items. She later identified Jarvis Brown as the robber.

         Detective Michael Flores with the New Orleans Police Department testified that he investigated a report of an armed robbery in the Marigny, near the intersection of Frenchmen and North Rampart Streets. As part of the investigation, he interviewed the victim and viewed a surveillance video tape from a nearby restaurant. The surveillance tape was played for the jury and is a subject of one of Bartley's assignments of error. The surveillance video shows the men who robbed the victim getting out of an SUV. Mr. Boulanger viewed the footage several times the morning after the robbery before making the identification of the robbers in the photo lineup. At trial Mr. Boulanger identified Bartley as one of the robbers who pointed a gun at him.

         According to Detective Flores' testimony, he was able to identify Tevin Henderson as a potential suspect from the video tape. A few days later, he developed two additional suspects in the robbery; namely, Gerald Williams and Jamal Bartley. Williams and Bartley were arrested in the robberies that occurred on the same day in the Lakeview area, and their descriptions matched those in the videotape of the robbery Detective Flores was investigating. Detective Flores constructed two six-person photo lineups to show Mr. Boulanger and gave them to Detective Chris Laborde who showed the photos to the victim. The victim picked Jamal Bartley out of the lineup as the perpetrator of the armed robbery. Based on the victim's identification, Detective Flores arrested Bartley for armed robbery.

         The jury also heard testimony from Detective Stephen Kriebel of the New Orleans Police Department. Detective Kriebel responded to three armed robberies within fifteen minutes of each other in Lakeview on April 23, 2014. A wallet was taken from the first victim, a cell phone from the second, and keys and a purse from the third.

         Detectives tracked the cell phone taken from one of the victims and apprehended the suspects near the Iberville and Marais Street intersection. The suspects were in possession of the victims' credit cards. Detectives also found two hand guns in the suspects' vehicle. The clothes the suspects were wearing at the time, including a pair of khaki shorts, a white T-shirt, a pair of red shoes and a red bandanna worn by Bartley, were also taken into evidence at that time. Both guns and the clothing were introduced into evidence at trial. A credit card transaction at a gas station on Tulane Avenue led detectives to find a discarded purse taken from one of the victims.

         Detective Russell Green of the New Orleans Police Department testified that he was involved in the investigation of the armed robberies in Lakeview on April 23, 2014. He was driving an unmarked police vehicle and was tracking a cell phone stolen from one of the victims down Canal Street. He ultimately located the vehicle at Iberville and North Villere Street. It was a green truck parked near a construction zone. Detective Green was operating undercover and was wearing a white T-shirt, jeans and a contractor's work vest. The detective got out of his vehicle and observed the truck from about 30 feet away. When he saw three men matching the description of the robbers approach the truck, he notified other police units. Then he jumped into his vehicle and blocked the truck. By this time 30 or 40 police officers arrived, mostly in unmarked vehicles. The truck was now surrounded by police. Jarvis Brown was the driver, Bartley was in the back seat and Gerald Williams was in the passenger seat. Two firearms were visible. One was on the front seat and one on the back seat next to Bartley. Marijuana was also on the front seat of the truck. Detective Green also testified that he saw credit cards in the truck.

         Detective Roy Shackelford, a Third District investigator, also participated in the investigation of the Lakeview robberies on April 23, 2014. He went with Detective Kriebel to talk to two of the victims. One of the victims was tracking her stolen cell phone and gave the detectives the information. That led to the apprehension of three suspects including Bartley.

         DISCUSSION

         On appeal, Bartley assigns four errors:

1.) The trial court erred in denying the motion to sever the counts.
2.) The evidence is insufficient to support the convictions.
3.) The sentence for the armed robbery conviction is excessive.
4.) The defendant's right to full appellate review is compromised by an incomplete record.

         ERRORS PATENT

         A review of the record reveals an error patent with regard to Bartley's sentences for armed robbery with a firearm and attempted armed robbery with a firearm. In the bill of indictment, the State invoked the firearm sentence provision of La. R.S. 14:64.3, which provides that when a firearm is used in the commission of an armed robbery or attempted armed robbery, the "offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence."

         The trial court sentenced Bartley to thirty-five years at hard labor without benefit of probation, parole, or suspension of sentence for the count of armed robbery with a firearm, and to seven and one-half years on each of the three counts of attempted armed robbery with a firearm. However, the trial judge did not specify whether the sentences imposed included the enhanced term of imprisonment under La. R.S. 14:64.3. A sentence is indeterminate when the trial court fails to impose a consecutive five-year enhancement as mandated by La. R.S. 14:64.3.[2] Therefore, we hereby vacate the sentences and remand the matter for resentencing or clarification as to whether the sentences include any additional punishment as prescribed by La. R.S. 14:64.3. [3]

         ASSIGNMENT OF ERROR NUMBER TWO

         The second assignment relates to the sufficiency of evidence. When 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.[4]Accordingly, Bartley's second assignment of error will be addressed first. Our standard of reviewing the sufficiency of the evidence to support a criminal conviction is well established. 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.[5] 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.[6]

         In the matter before us, in the conviction for the armed robbery of Mr. Boulanger, Bartley claims the State failed to negate the possibility that Mr. Boulanger misidentified him. In the three convictions for attempted armed robbery, Bartley claims the State failed to present evidence sufficient to prove his involvement as a principal to the crimes.

         In order to prove the armed robbery with a firearm of Mr. Boulanger, the State must prove beyond a reasonable doubt that the defendant "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 that the dangerous weapon used was a firearm, " and that "the dangerous weapon used in the commission of the crime of armed robbery is a firearm."[7]

         Bartley does not dispute that Mr. Boulanger was robbed at gunpoint, or that his backpack was taken by the robbers. Bartley asserts the State did not prove he was the one who committed the armed robbery. He argues Mr. Boulanger's identification was unreliable because Mr. Boulanger did not identify him as the robber until having viewed a grainy surveillance video, taken at night in a partially illuminated area. Further Bartley argues Mr. Boulanger did not say Bartley was the man who robbed him, only that Bartley looked "closest to" the robber, and was "pretty damn close."

         In addition, Bartley argues the photo lineup from which Mr. Boulanger identified him was suggestive because in one of the lineups, his picture was in the number six position, and in the other his co-defendant's picture was also in the number six position. Bartley notes that Mr. Boulanger even remarked on the positioning, commenting that it was "silly" that the detective put "the guy" (the suspect) Mr. Boulanger picked from each lineup in the same number position in both lineups.

         "[W]hen the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification."[8] A positive identification by only one witness is sufficient to support a conviction[9]

         Robert Boulanger testified he viewed the surveillance video on April 28, 2014 and watched it "multiple" times. During sentencing, the trial judge remarked that the surveillance video was "very perfect, clear, crystal clear video". Further, the day after the armed robbery, Mr. Boulanger identified Bartley from a photo lineup presented to him at his home on April 29, 2014. He again identified Bartley from a lineup presented by Detective Laborde at the police station. Mr. Boulanger pointed to Bartley brandishing a weapon in the surveillance video. Although he admitted having had three beers earlier in the night, no evidence exists to suggest Mr. Boulanger was not being attentive. Notably he observed the robbers standing across the street and was sure they were going to rob someone but was hoping it would not be him. Mr. Boulanger had good opportunity to view his assailants. He looked at all three of the robbers; his vision was not just directed at one of his assailants; and he was confident Bartley was one of the robbers.

         Mr. Boulanger called 911 immediately after the robbers fled and met with Detective Flores approximately one-half hour after the robbery. Mr. Boulanger described the armed suspects as three black males with dreadlocks. He denied choosing Bartley's photo because it was No. 6 in the lineups and ...


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