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State v. McElroy

Court of Appeals of Louisiana, Third Circuit

March 7, 2018

STATE OF LOUISIANA
v.
KENTRELL D. MCELROY

         APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 75292 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

          Julie C. Tizzard COUNSEL FOR DEFENDANT/APPELLANT: Kentrell D. McElroy

          Don M. Burkett District Attorney Anna L. Garcie Assistant District Attorney Eleventh Judicial District COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         The defendant, Kentrell D. McElroy, appeals his convictions for armed robbery and aggravated kidnapping. For the following reasons, we affirm the conviction for armed robbery, but vacate the conviction for aggravated kidnapping.

         DISCUSSION OF THE RECORD

         The defendant was charged by bill of information filed on November 12, 2015, with aggravated kidnapping, a violation of La.R.S. 14:44, and armed robbery, a violation of La.R.S. 14:64. After waiving his right to trial by jury, a bench trial was held on January 17, 2017.

         The evidence at trial established that the victim, Latasha McKinney, a shift manager at the Many, Louisiana Pizza Hut restaurant, was taking a deposit to the bank on August 24, 2015, when a man, who was hiding in the backseat of her car, pointed a gun at her face and ordered her to keep driving. As she drove on, she noticed a silver car following her car. The defendant subsequently took Ms. McKinney's phone and the cash from the money bag and threw five twenty-dollar bills at her as he exited her car. He then got into the silver car, which drove off. The evidence established that more than $3, 000.00 was taken from Ms. McKinney.

         Ms. McKinney first identified the defendant from a photographic lineup. She later identified him as the perpetrator during her trial testimony. At the close of the bench trial, the trial court found the defendant guilty of both aggravated kidnapping and armed robbery.

         The defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. He was then sentenced to life in prison at hard labor, without the benefit of probation, parole, or suspension of sentence, on the aggravated kidnapping conviction, and twenty years at hard labor, without benefit of probation, parole, or suspension of sentence, on the armed robbery conviction, with both sentences ordered to run concurrently.

         On appeal, the defendant argues that the charge of aggravated kidnapping was improperly instituted by bill of information and that the evidence was insufficient to prove that he committed each of the offenses.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent, one of which is directly raised by the defendant herein and is addressed in our discussion of his first assignment of error.

         In addition, the defendant waived his right to trial by jury and elected to be tried by a judge alone. While a written waiver was filed on October 18, 2016, it was signed only by counsel for the defendant and not signed by the defendant himself, as required by La.Code Crim.P. art. 780. In addition, the written waiver referenced only the charge of aggravated kidnapping. However, the October 27, 2016 court minutes indicate that the defendant and his attorney were present in court when the trial court personally addressed the defendant concerning his right to a jury trial and the waiver thereof. Thereafter, the trial court found that the defendant had "knowingly, intelligently and voluntarily waived his right to a trial by jury[;]" thus, rendering the error ...


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