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State v. Gray

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2017



          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Blair C. Constant


          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst


         Defendant, 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.


         On 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.

         On 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.


         The 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.[1] 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.

         After 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 driveway.

         Deputy 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.

         The second armed robbery, which encompasses counts three, four, and five in the bill of information, occurred on October 9, 2014.[2] 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.[3] 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."

         The 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.

         At the 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.

         Police 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 gunshot wounds.

         Major 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.

         After 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.[4] 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 with him.

         During 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.


         Sufficiency of the Evidence (Assignment of Error Number One)

         In his 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 perpetrator.

         In 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.

         To 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.

         In the 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.

         However, 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 robberies.[5]

         Additionally, 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.

         Applying 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 without merit.

         State's Improper Reference to Defendant's Right Against Self-Incrimination (Assignment of Error Number Two)

         In his 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 dire:

         MR. CONSTANT:

… 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?
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?

         Following 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 this denial.

         On 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.

         A 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.

         La. 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.

         When 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, ...

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