FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-744,
SECTION "I" Honorable Karen K. Herman, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Chief of
Appeals Assistant District Attorney J. Taylor Gray Assistant
District Attorney PARISH OF ORLEANS COUNSEL FOR
Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Marion F. Edwards, Pro Tempore).
F. Edwards, Pro Tempore Judge.
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.
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.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.
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.
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.
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
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
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.
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.
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.
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.
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
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.
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
appeal, Bartley assigns four errors:
1.) The trial court erred in denying the motion to sever the
2.) The evidence is insufficient to support the convictions.
3.) The sentence for the armed robbery conviction is
4.) The defendant's right to full appellate review is
compromised by an incomplete record.
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."
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. 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. 
OF ERROR NUMBER TWO
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.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. 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.
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.
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."
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
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.
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." A positive identification by only one
witness is sufficient to support a conviction
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.
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