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State v. Parker

Court of Appeals of Louisiana, Fourth Circuit

December 12, 2018


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 523-312, SECTION "H" Honorable Camille Buras, Judge

          Leon Cannizzaro District Attorney Donna Andrieu Michael Danon Assistant District Attorney Orleans Parish COUNSEL FOR APPELLEE/ STATE OF LOUISIANA


          Desmond Parker PRO SE DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          Roland L. Belsome, Judge.

         Procedural History

         Defendant, Desmond Parker, appeals his convictions and sentences for simple robbery, in violation of La. R.S. 14:65, and intimidating a witness, in violation of La. R.S. 14:129.1. He also appeals the district court's ruling denying his motion for new trial. Consolidated with this appeal is the writ application filed by the State; the State contends that the district court erred in its adjudication of Defendant's habitual offender status.

         After reviewing the appellate record and applicable law, we affirm Defendant's convictions.[1] This Court further finds that the district court did not err when it found that Defendant was a third-felony offender rather than a fourth-felony offender. Thus, the State's writ application is denied.

         On January 29, 2015, Defendant was charged with simple robbery, in violation of La. R.S. 14:65 (count one), intimidating a witness in violation of La. R.S. 14:129.1 (count two), and aggravated assault, in violation of La. R.S. 14:37(A) (count three).[2] Defendant pled not guilty to all charges.

         He proceeded to trial by jury. On January 26, 2016, the jury found Defendant guilty as charged on counts one and two. Subsequently, Defendant filed motions for new trial and for post-verdict judgment of acquittal, which were denied. Following the denials, there was a multiple bill hearing and the district court adjudicated Defendant a third, rather than a fourth, offender as sought by the State. He was sentenced pursuant to La. R.S. 15:529.1 to fourteen (14) years at hard labor on count one and ten (10) years at hard labor on count two. The trial court denied Defendant's motion to reconsider sentence. The State sought supervisory review of Defendant's habitual offender adjudication. Defendant appealed.

         Assignments of Error

         On appeal, Defendant, through counsel and pro se, maintains that there was insufficient evidence to support his conviction, and the trial court erred in not granting his motion for new trial. In addition, Defendant's pro se brief also argues that the State's attorney engaged in prosecutorial misconduct. Defendant further maintains that he received ineffective assistance of counsel. Lastly, he challenges the evidence submitted to the jury at trial.

         Sufficiency of the Evidence[3]

         In accordance with the well-settled jurisprudence that "[w]hen 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]In reviewing whether the evidence presented in a case is sufficient to support a conviction, we are governed by the standard set forth in the United States Supreme Court decision of Jackson v. Virginia.[5]

         The standard is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. "The Jackson doctrine involves more than simply applying a fixed standard to measure the simple quantum of the evidence produced in a case."[6] A sufficiency of evidence review does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [7] "The inquiry requires the reviewing court to ask whether the trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt."[8]

         The reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.[9] A reviewing court is neither permitted to second guess the rational credibility determinations of the fact finder at trial, nor is it to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict.[10] It is not the function of an appellate court to assess credibility or reweigh the evidence.[11]

         Simple Robbery

         In order to convict Defendant of simple robbery, the State had to prove that he: (1) took something of value; (2) belonging to another; (3) from the person of another; (4) by use of force or intimidation.[12]

         At trial, Reed Sutton (the victim) testified that on September 2, 2014, he was drinking and socializing with Defendant and "Cody" in the French Quarter in New Orleans; he had known both men for a few months. He later accompanied Defendant and "Cody" to a French Quarter hotel to complete a pre-arranged narcotics purchase.[13] When the three men arrived at their destination, the victim decided that the price of the drugs was more than he was willing to pay; consequently, he refused to make the purchase and attempted to walk away. However, "Cody" placed him in a choke hold while Defendant stole his cash and wrist watch.

         The testimony elicited at trial further established that the victim reported the incident to NOPD Officer Thomas Perez (Officer Perez) at the Eighth District Police Station. Officer Perez's investigation revealed that "Cody" was Cody Bergeron ("Bergeron"), a known associate of Defendant. When Officer Perez showed the victim booking photos of Defendant and Bergeron, the victim confirmed they were the men who robbed him thirty (30) minutes earlier. Further investigation failed to reveal any witnesses or surveillance video of the incident. Officer Perez obtained arrest warrants for Defendant and Bergeron.

         Additionally, the State called Richard Traube ("Traube"), who testified relative to the State's Prieur notice concerning Defendant's and Bergeron's[14]guilty pleas to the second degree robbery of Traube in 2009. The State's purpose in introducing the 2010 conviction was to show the proximity of the crime scenes, the targeting of vulnerable victims, and the forceful taking of property from the victims.

         Traube testified that he was drinking and talking with Bergeron in the Roundup Bar in the French Quarter in 2009. Traube and Bergeron agreed that in exchange for payment, Bergeron would engage in a sexual act with Traube. After the act, Traube refused to pay Bergeron. When Traube left the bar, Bergeron and Defendant beat and robbed him.

         Under the Jackson standard, we find there was sufficient evidence for the jury to return a verdict of guilty on the simple robbery charge.

         Intimidating a Witness

         To uphold a conviction for intimidating a witness, the State was required to prove that Defendant intimidated or impeded, by threat of force or force, or attempted to intimidate or impede, by threat of force or force, a witness with intent to influence his testimony, his reporting of criminal conduct or his appearance at a judicial proceeding. La. R.S. 14:129.1 defines the term "witness" to include a person who is a victim of criminal conduct, a person who has testified in court under oath, a person who has reported a crime, and a person who has been served with a court subpoena.

         The victim also testified that on the night of September 27, 2014, he and "Katy," Defendant's ex-girlfriend, were in the Roundup Bar in the French Quarter. Defendant was in the bar as well and confronted the victim with a knife and threatened to kill him. The victim ran to a friend's apartment and was driven to the Eighth District Police Station.

         The victim reported to NOPD Detective Steve Nolan ("Detective Nolan") at the Eighth District Police Station that Defendant had pulled a knife on him and threatened him at the Roundup Bar. The victim said Defendant threatened to kill him if he did not drop the robbery complaint he filed. Detective Nolan was unable to locate any witnesses to the knife incident, but did obtain a warrant for Defendant's arrest, which Officer Jason Collins executed after receiving a tip that Defendant was at the Old Town Inn.

         Anthony Henry ("Henry"), the manager/bartender on duty at the Roundup Bar on the night of September 27, 2014, testified that the victim and Defendant had an altercation in the bar. He claimed that he did not see any physical contact or a weapon, but he ejected the victim from the bar due to safety concerns. Although Henry did not witness certain details of the interaction between the men, his testimony supports the confrontation and ensuing argument.

         Also, at trial, the jury heard the testimony of Jim Huey ("Huey") of the Orleans Parish Sheriff's Department. Huey is the custodian of the records of inmate telephones calls. Huey explained that inmate phone calls are recorded by an internet-based system and stored on a secure database. One of Huey's duties is to provide law enforcement agencies copies of those jailhouse telephone calls. Huey further explained that when an inmate makes a call from the Orleans Parish Prison, the inmate is issued a warning that the call will be monitored and recorded. Huey testified that a call detail sheet, which lists the specifics of an inmate call, accompanies the recording of jailhouse calls.

         Pursuant to the State's request, Huey supplied a disc containing a recording of a jailhouse call made by Defendant, which was played for the jury. In the call, Defendant tells the victim he will not be arrested if he fails to appear at trial. Moreover, Defendant stresses that the only way the charges against him "will go away" is if the victim fails to testify.

         Again, reviewing the evidence under the Jackson standard we find the jury had sufficient evidence to return a guilty verdict for the crime of intimidating a witness.

         Motion for New Trial[15]

         In this assignment, Defendant maintains that a motion for new trial should have been granted based on newly discovered evidence. More specifically, that Veronica Smith's statement warranted the granting of a new trial.

         Here, the motion for new trial is based primarily on the defense's inability to present the statement of Veronica Smith ("Smith"). Smith was the girlfriend of Bergeron. She claimed that she witnessed the robbery and Defendant was not involved. The trial court visited this issue during trial. At that time, Defendant contended that Smith, who had not been served and was not present to testify, should be declared an unavailable witness. As an unavailable witness, Defendant sought to have a statement by Smith that had been given to defense counsel's investigator admitted into evidence through the investigator's testimony.

         The trial court first found that Smith did not qualify as an unavailable witness.[16] Next, the trial court determined that even if the witness was unavailable the statement would not be admissible evidence because the statement was not written by Smith. Rather, it was a narrative representing Smith's statement written by the investigator. Additionally, Smith was not under oath, there was no video or audio recording of the statement, and although it was signed by Smith, it was not notarized. Considering those aspects of the document, the trial court ...

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