APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 14-5895, DIVISION
"O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Blair C.
DEFENDANT/APPELLANT, BRANDON GRAY In Proper Person
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Stephen J. Windhorst
A. CHAISSON JUDGE
Brandon Gray, appeals his convictions and sentences for five
counts of armed robbery and one count of aggravated flight
from an officer. Defendant's appellate counsel has filed
a brief setting forth three assignments of error relating to
the sufficiency of the evidence and the trial court's
denial of defendant's motions for mistrial. In addition,
defendant has filed a pro se brief in which he
assigns thirteen errors that allegedly occurred during the
course of the proceedings. Finding no merit to the arguments
advanced by either defendant or his appellate counsel, we
affirm defendant's convictions and sentences.
December 3, 2014, the Jefferson Parish District Attorney
filed a bill of information charging defendant with five
counts of armed robbery, violations of La. R.S. 14:64 (counts
one, two, three, four, and five) and one count of aggravated
flight from an officer, in violation of La. R.S. 14:108.1(C)
(count six). At his arraignment, defendant pled not guilty.
Following resolution of some pretrial motions, defendant
proceeded to trial before a twelve-person jury and was found
guilty as charged on September 22, 2016. Defendant filed a
motion for new trial and a motion for post-verdict judgment
of acquittal, which were denied.
October 19, 2016, the trial court sentenced defendant to
fifty years imprisonment at hard labor without benefit of
probation, parole, or suspension of sentence on counts one
through five and to five years imprisonment at hard labor on
count six, to run concurrently. Thereafter, pursuant to the
provisions of La. R.S. 15:529.1, the State filed a multiple
offender bill of information on count one alleging defendant
to be a second felony offender. On December 12, 2016, after
defendant stipulated to the multiple bill, the trial court
vacated defendant's sentence on count one and resentenced
him as a second felony offender to fifty years in the
Department of Corrections without benefit of probation,
parole, or suspension of sentence. The trial court ordered
that his enhanced sentence run concurrently with his other
sentences. Defendant now appeals.
charges in this case arise from robberies on two different
dates at Iberia Bank located on Barataria Boulevard in
Marrero. The first incident, which encompasses counts one and
two in the bill of information, occurred on September 30,
2013. On that date, Daniel Gannard, the branch
manager, observed an individual with a pistol and a cloth
over his face approach the bank, at which point he yelled out
to alert the employees. Both Lynne Hebert, an assistant
branch manager, and Mr. Gannard described that the robber
rushed through the door waving a gun and shouting
obscenities. After knocking his gun on Mr. Gannard's
window and telling him, "Get the f**k up. I'm not
playing with you, " the perpetrator proceeded to the
teller window and demanded money. In particular, the
assailant pointed a gun at Jarod Murphy's head and
commanded the teller to give him all the money. Mr. Murphy
complied and started putting money into the white plastic
grocery bag provided by the robber. During this encounter,
the assailant noticed Trudy White, a teller who was in the
drive-up window, and ordered her to also give him all the
money. She likewise complied with his demand and assisted Mr.
Murphy in putting the money in the white grocery bag.
they put the money in the bag, the robber turned to leave,
yelling for everyone to get down and threatening to shoot.
While the robbery was in progress, Renee Rodney, a bank
employee who was in the break room, saw what was transpiring,
exited the back door, and ran to the restaurant next door for
help. After someone from the restaurant called 9-1-1, Ms.
Rodney went back outside and saw the robber exit the rear of
the bank, "skipping" to his car, an older model
gold Suburban, located behind the bank in a neighboring
Stan Kerr of the Jefferson Parish Sheriff's Office
responded to the armed robbery call, and upon his arrival, he
secured the scene and obtained initial statements from the
victims and witnesses. When Detective Marc Macaluso, the
investigating officer, thereafter arrived at the bank, he
also spoke to the victims and witnesses. From these
interviews, Detective Macaluso learned that the perpetrator
was "a black male, approximately 5'5" to
5'10" in height. He was wearing a camouflage boonie
hat, a red sweatshirt, sunglasses and a white cloth over his
face." Additionally, Detective Macaluso learned that the
assailant wore "a yellow, reflective, construction-style
vest" and had a tattoo on his right hand. With this
limited information, no suspects were developed, and the
investigation was suspended. It was also determined that the
perpetrator stole $4, 720.00, none of which was recovered.
second armed robbery, which encompasses counts three, four,
and five in the bill of information, occurred on October 9,
2014. At approximately 10:00 a.m., while Mr.
Gannard was meeting with Ms. Hebert in his office, he saw an
individual pass the window who resembled the perpetrator from
the September 2013 armed robbery, prompting him to say,
"He's back again, y'all. Heads up." The
robber, whose face was fully covered, rushed into the bank
armed with a black handgun. After threatening Mr. Gannard,
the assailant ran across the lobby, leapt over the teller
counter, and yelled, "I want the money. I want all the
money. Don't play with me. I will kill you."
perpetrator approached Rachel Aiena, grabbed money from her,
put it in a white grocery bag, and then advanced towards Ms.
White, the drive-up teller. Ms. White described that the
assailant pointed the gun at her, demanded all the money, and
threatened to kill her. Fearful for her life, Ms. White
complied with the robber's demands and put the money in
the "Walmart bag." The robber then went to Dana
Silvey, another teller, and demanded money from her. She
handed him the money from her cash drawer, and after putting
it in the plastic bag, the robber demanded that she open the
vault. Ms. Silvey explained that she could not open the vault
by herself, but he held the gun at her side saying, "I
will f**king shoot you. Open the f**king vault." Being
unable to enter the vault, the robber collected his money,
jumped back over the counter, and exited the bank.
time of this robbery, Ms. Silvey happened to be on the phone
with her husband, Oliver Silvey, a lieutenant with the
Jefferson Parish Sheriff's Office. Ms. Silvey told her
husband that the bank was getting robbed, and then she put
the phone down but did not hang up. Lieutenant Silvey called
in the robbery over his police radio. After the perpetrator
left the bank, Ms. Silvey got back on the phone with her
husband and advised him that the robber left in a blue
Suburban and was headed westbound on Oak Street.
officers, including Deputies Ted Raymond and Alvin Farris,
responded to the armed robbery call, and upon arriving in the
area, observed a blue Suburban matching the description of
the suspect vehicle on Lapalco Boulevard. A high speed chase
ensued, which ended when the vehicle crashed into a house in
the Lincolnshire Subdivision. The suspect then jumped out of
the vehicle holding the bag with the money in one hand and a
gun in the other. As he fled, the plastic bag got caught on
the end of the bumper causing the bag to rip and the money to
be scattered over the front lawn. Deputy Raymond shouted at
the suspect to stop, but he ignored the officer's order
and jumped over a fence. When Deputy Raymond again shouted to
stop, the suspect turned and pointed the gun at him, at which
point Deputy Raymond fired his weapon at the armed assailant.
Despite being shot, the suspect fled, but after a short foot
chase, was apprehended. The suspect, who was identified as
Brandon Gray, was thereafter handcuffed, advised of his
rights, and transported to the hospital for treatment of his
Chad Pitfield of the Jefferson Parish Sheriff's Office,
who was also at the scene of the stop, secured the money that
was in the front yard and thereafter returned the stolen
money, $15, 667.00, to Iberia Bank. In addition to recovering
the money, the officers also discovered a pellet gun in the
area of defendant's apprehension. Further, as a result of
a search of the blue Suburban, the officers recovered a pair
of gloves, a green bandanna, and a dark blue sweatshirt.
learning that defendant had been transported to the hospital,
Detective Macaluso went there with the intent to interview
him. Detective Macaluso reviewed the rights form with
defendant but decided to discontinue the interview because of
defendant's condition. However, later that day, defendant was
transported to the detective bureau, at which time Detective
Macaluso advised him of his rights and conducted an interview
the recorded interview, defendant confessed to the October 9,
2014 armed robbery, but he denied any involvement in the
September 30, 2013 robbery. When shown photographs of the
suspect and suspect vehicle from surveillance video from the
2013 robbery, defendant still denied his involvement and
further denied having previously seen the vehicle. Detective
Macaluso then confronted defendant with evidence that he was
issued a traffic citation on November 5, 2011, driving a 1996
GMC gold Suburban, which belonged to his children's
mother. The day after the interview, Detective Macaluso
located this vehicle in the Lincolnshire neighborhood near
the area where defendant was apprehended. As a result of a
search of this vehicle, the police recovered a box of pellets
and "construction-type equipment." Defendant was
thereafter charged with both the September 30, 2013 and
October 9, 2014 robberies.
ASSIGNMENTS OF ERROR
of the Evidence (Assignment of Error Number
first assignment of error, defendant challenges the
sufficiency of the evidence used to convict him of the armed
robberies of Ms. White (count one) and Mr. Murphy (count two)
that occurred on September 30, 2013. While defendant
maintains that the evidence was insufficient to prove all the
elements of these two armed robberies, his argument focuses
on the State's failure to prove his identity as the
reviewing the sufficiency of the evidence, an appellate court
must determine if 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. Mickel, 09-953 (La.App. 5 Cir.
5/11/10), 41 So.3d 532, 534, writ denied, 10-1357
(La. 1/7/11), 52 So.3d 885. A review of the record for
sufficiency of the evidence does not require the court to ask
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Rather, a
reviewing court is required to consider the whole record and
determine whether a rational trier of fact would have found
the State proved the essential elements of the crime beyond a
reasonable doubt. State v. Jones, 08-20 (La.App. 5
Cir. 4/15/08), 985 So.2d 234, 240. It is not the function of
the appellate court to assess credibility or re-weigh the
evidence. State v. Smith, 94-3116 (La. 10/16/95),
661 So.2d 442, 443.
support a conviction for armed robbery, the State must prove
beyond a reasonable doubt that defendant took "anything
of value belonging to another from the person of another or
that is in the immediate control of another, by use of force
or intimidation, while armed with a dangerous weapon."
La. R.S. 14:64. Encompassed in proving the elements of an
offense is the necessity of proving the identity of the
defendant as the perpetrator. Where the key issue is
identification, the State is required to negate any
reasonable probability of misidentification in order to carry
its burden of proof. State v. Ray, 12-684 (La.App. 5
Cir. 4/10/13), 115 So.3d 17, 20, writ denied,
13-1115 (La. 10/25/13), 124 So.3d 1096.
present case, we find that the State presented sufficient
evidence to prove beyond a reasonable doubt all the elements
of the offense of armed robbery, including defendant's
identity as the perpetrator. At trial, the State presented
testimony that on September 30, 2013, a black male armed with
a handgun came into the bank, demanded money, and took money
from two different bank tellers, Ms. White and Mr. Murphy.
Admittedly, the suspect had his face fully covered during the
robbery, and therefore, none of the victims or witnesses were
able to identify defendant as the robber.
several witnesses who were present at both robberies
testified about the similarities between the perpetrators and
the crimes. Ms. Hebert stated that she felt confident that
the same person robbed the bank both times, specifically
noting the similarities between the sound of the voice and
the language used. In addition, Ms. Hebert noted that on both
occasions, the assailant wore a "bandanna-type
covering" over his face, carried a black automatic
handgun, and used a white plastic grocery bag. Ms. White
testified that the perpetrator of both robberies was an
African-American male. She further observed that the
assailants had the same exact voice and had similar
"[m]annerisms, character, shouting, everything."
Mr. Gannard likewise felt confident that the assailants were
the same as evidenced by his announcement, "He's
back again, y'all, " when he saw the perpetrator of
the October 2014 robbery approach the bank. During his
testimony, Mr. Gannard explained, "The body language,
the way he walked, the height, the way he got to the door and
turned back and looked at me, it was all the same that
happened a year prior to that." Further, the jury was
able to view the surveillance video from both robberies and
was able to determine whether to accept the witnesses'
testimony concerning the similarities between the two
defendant was connected to an older model gold Suburban, a
car consistent with the getaway vehicle in the September 2013
robbery. When that vehicle was searched, construction gear,
consistent with the reflective vest used in the September
2013 robbery, was found. Further, defendant had tattoos on
his right hand consistent with the tattoos on the right hand
of the perpetrator in the September 2013 robbery.
the Jackson standard, we find that a rational trier
of fact, viewing the evidence in a light most favorable to
the prosecution, could have concluded beyond a reasonable
doubt that defendant committed the armed robberies of Ms.
White and Mr. Murphy on September 30, 2013. Accordingly, the
arguments relating to the sufficiency of the evidence are
Improper Reference to Defendant's Right Against
Self-Incrimination (Assignment of Error Number
next assigned error, defendant argues that the trial court
erred in denying his motion for mistrial after the
State's improper reference to defendant's right
against self-incrimination. Defendant specifically complains
about the following statements of the prosecutor when he
addressed a panel of prospective jurors during voir
… The second constitutional right, ladies and
gentlemen, is that you have a right to remain silent. What
does that mean? You hear it on television all the time.
What that means is Mr. Perez [defense counsel] and Mr. Gray,
they have done their job already. They showed up here today.
They don't have to do anything. Mr. Perez doesn't
have to even conduct voir dire if he doesn't -- if he
chooses not to. They don't have to call any witnesses.
They can sit there -- he doesn't have to question any of
my witnesses. All they have to do is sit there and watch me
present my case. Okay.
And if they choose not to do anything, more importantly, if
he chooses not to even take the stand after I finish my case,
that decision cannot be held against him. Does everybody
promise to do that? And I know -- y'all are kind of
shaking yes, but I just want to hit on this one more time.
It's human nature -- Miss Earls, would you agree,
it's human nature that you would want to know, right? You
would want to know why he doesn't say anything?
PROSPECTIVE JUROR NO. SEVEN:
If you are innocent, you -- and I am talking about you
specifically, Miss Earls. If you are innocent of the crime,
you would probably be telling everybody, right, that you are
innocent and why you are innocent. Would you agree?
PROSPECTIVE JUROR NO. SEVEN:
these comments, defense counsel requested to approach the
bench and moved for a mistrial pursuant to La. C.Cr.P. art.
770(3), which prohibits the district attorney from making any
reference to a defendant's failure to testify. After
considering the arguments of counsel, the trial court denied
defendant's motion for mistrial. Defendant now challenges
appeal, defendant contends that the prosecutor's comment,
that it is human nature to want to know why a defendant does
not say anything, was meant to cast negative aspersions on
defendant if he did not testify and also implied that it was
the duty of defendant to take the stand for the jury to hear
his side of the story. Appellate counsel acknowledges that
the prosecution may refer to a defendant's constitutional
right not to testify in voir dire, but claims that
"the philosophical comments" made in this case go
well beyond the jurisprudential rule and eroded
defendant's constitutional right not to testify.
mistrial is a drastic remedy and, except in instances in
which a mistrial is mandatory, is warranted only when trial
error results in substantial prejudice to a defendant,
depriving him of a reasonable expectation of a fair trial.
Whether a mistrial should be granted is within the sound
discretion of the trial court, and the denial of a motion for
mistrial will not be disturbed absent an abuse of discretion.
State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07),
960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.
5/9/08), 980 So.2d 684.
C.Cr.P. art. 770(3) provides that a mistrial shall be ordered
when the prosecutor makes a remark or comment during the
trial or in argument, within the hearing of the jury, that
refers directly or indirectly to the failure of the defendant
to testify in his own defense. The purpose behind this
prohibition against such prosecutorial misconduct is to
protect the defendant's Fifth Amendment right against
self-incrimination by preventing attention being drawn
directly or indirectly to the fact that the defendant has not
testified on his own behalf. State v. Mitchell,
00-1399 (La. 2/21/01), 779 So.2d 698, 701.
the prosecutor directly refers to the defendant's failure
to take the stand, the defendant must be granted a mistrial
if he requests one. An indirect reference to the
defendant's failure to take the stand warrants a mistrial
only when it is clear that the remark was intended to focus
the jury's attention on the defendant's not
testifying. State v. Packnett, ...