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State v. Jones

Court of Appeals of Louisiana, Fourth Circuit

February 27, 2019

STATE OF LOUISIANA
v.
REGINALD JONES

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 530-889, SECTION "D" Honorable Paul A. Bonin, Judge

          Leon Cannizzaro District Attorney Donna Andrieu Assistant District Attorney Chief of Appeals Irena Zajickova Assistant District Attorney ORLEANS PARISH COUNSEL FOR APPELLEE, STATE OF LOUISIANA

          Alex K. Kriksciun ATTORNEY AT LAW AND Rickey Nelson Jones LAW OFFICES OF REVEREND RICKEY NELSON JONES, ESQ. COUNSEL FOR DEFENDANT/APPELLANT, REGINALD JONES

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Paula A. Brown

          TERRI F. LOVE JUDGE

         Defendant was charged with aggravated assault with a firearm, possession of a firearm by a convicted felon, and obstruction of justice after allegedly threatening to kill his neighbor with a gun. A jury found defendant guilty as charged. Following a multiple bill hearing, the trial court adjudged the defendant a third and fourth habitual offender and sentenced him to twenty years.

         Defendant appeals contending that the trial court erred by denying his motion for post-verdict judgment of acquittal, as there was insufficient evidence to support his convictions. Defendant also asserts that his Fifth Amendment rights were violated by mention of his prior criminal history and ordering him to submit to fingerprinting at the multiple bill hearing. Defendant lastly contests his guilt as a habitual offender, maintaining that the evidence submitted was insufficient.

         We find that the trial court did not err by denying defendant's motion for post-verdict judgment of acquittal, as sufficient evidence was presented to support his convictions. Defendant failed to show that mentioning his previous criminal history constituted a violation of rights. As to the multiple bill hearing, defendant did not admit to being a habitual offender. Therefore, the trial court's alleged failure to advise him of the right to remain silent was harmless error. Fingerprints are a non-testimonial form of identification and ordering defendant to submit them was not error. The fingerprint testimony and evidence was sufficient to support the habitual offender adjudication. Accordingly, the convictions and sentence of defendant are affirmed.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Louis Jones ("Mr. Jones"), the victim, was confronted by the defendant, a neighbor, Reginald Jones ("Defendant") on September 12, 2016. Defendant allegedly brandished a firearm and threatened to kill Mr. Jones.

         As a result of the confrontation, Defendant was charged by bill of information with aggravated assault with a firearm and possession of a firearm by a convicted felon, in violation of La. R.S. 14:37.4 and La. R.S. 14:95.1, respectively. Defendant appeared for arraignment and pled not guilty to the charges. The trial court found insufficient probable cause to substantiate the charges at the preliminary hearing. Defendant withdrew his not guilty plea and pled guilty to aggravated assault with a firearm and was sentenced to five years at hard labor. The State also entered a nolle prosequi as to the possession of the firearm charge. The same date, the State filed a multiple offender bill and Defendant pled guilty thereto. The trial court then vacated the five-year sentence and set a date for sentencing.

         Subsequently, Defendant moved to withdraw his guilty plea. The State joined the defense's motion and the trial court ordered that Defendant's guilty plea be withdrawn. The State thereafter filed an amended bill of information charging Defendant with aggravated assault with a firearm, possession of a firearm by a convicted felon, as well as obstruction of justice, in violation of La. R.S. 14:130.1. Defendant pled not guilty to the amended bill.

         A jury found Defendant guilty as charged as to all counts. Defendant filed a motion for post-verdict judgment of acquittal, which the trial court denied. The trial court sentenced Defendant to ten years at hard labor on the convictions for obstruction of justice and aggravated assault with a firearm. The trial court also sentenced Defendant to ten years at hard labor without the benefit of probation, parole, or suspension of sentence, as to the felon in possession of a firearm charge. However, the trial court waived any fees and costs as to all three counts. All sentences were ordered to run concurrently, with credit for time served.

         After sentencing, the State filed a multiple offender bill of information. The trial court adjudicated Defendant a quadruple offender as to his convictions for aggravated assault with a firearm (count one) and obstruction of justice (count three) and a triple offender as to the conviction for felon in possession of a firearm (count two). The trial court then vacated the previous sentences and resentenced Defendant to twenty years for each count, to run concurrently, without the benefit of probation, parole, or suspension of sentence as to the felon in possession of a firearm charge. Defendant's appeal followed.

         TESTIMONY AND EVIDENCE

         Mr. Jones was living with his ex-wife, Brenda Jones, with whom he had an on-again off-again relationship, at 2542 Elder Street. Defendant lived two houses down from Mr. Jones and Brenda. Mr. Jones testified that at approximately 9:00 a.m., Defendant approached him on the street as he was walking home from purchasing cigarettes at a gas station on Franklin Avenue. Mr. Jones stated that Defendant appeared to be retrieving the garbage can and stopped him "like he wanted to fight," said "something about [how] I disrespected him and … he's going to do this and that to me." Defendant stated that Mr. Jones disrespected him when Mr. Jones was arguing with Brenda outside their home one night. Mr. Jones testified that he had "said something" during his argument with his ex-wife and Defendant "took it like [he] was speaking about him [Defendant]." Mr. Jones said that during this encounter, Defendant moved towards him as if he was going to hit him, but Mr. Jones moved out of the way and continued home. Mr. Jones denied telling Defendant he was "going to go after him," but conceded that they continued to argue as he walked away.

         Upon returning home, Mr. Jones began watching television, but then observed Defendant on his surveillance video standing in his driveway. When Mr. Jones exited his house, he noticed Defendant had "something in his hand" resembling a "pistol." He was ten to twenty feet away from Defendant when he observed the gun.[1] Defendant then said he was "going to blow [Mr. Jones'] head off." Mr. Jones stated he was terrified, but maintained his composure. He then overheard someone call Defendant back and said to "leave the old man alone." Mr. Jones went back inside his home and resumed watching television. Mr. Jones did not call the police to report the incident, but when Brenda returned from work at approximately 2:00 p.m., he advised that her that the "neighbor down the street" was "act[ing] a fool." Mr. Jones showed her the surveillance video, and Brenda called 911.[2] Mr. Jones informed the police that Defendant pulled a gun on him and made him nervous. Mr. Jones stated that he had no previous altercations with Defendant. Mr. Jones identified the surveillance tapes[3] and himself on the officer's body-cam video.[4]

         Mr. Jones was also shown an affidavit that was provided to the prosecution by defense counsel the morning of trial.[5] He testified that he did not write the statements listed on the affidavit, but acknowledged his signature thereon. Mr. Jones said Defendant brought the document to his home and drove them both to a "fax store" to have it signed before a notary. He stated that Defendant indicated that if he signed the affidavit it would help Defendant resolve the matter. Mr. Jones explained: "I've been with this mess for so long, I just wanted to end it, and he told me this would end it, you know, so I was just trying to end it." He stated that some of the content on the affidavit was correct, but that several statements were false, including the fifth statement that Defendant only tried to scare him with a "water pistol;" the ninth statement that "no firearms were involved and no crimes were committed;" and the eleventh statement that he "informed the State Prosecutor to end this over-reaction, to close this unnecessary prosecution because [he] will not testify for the State."[6]

         On cross-examination, Mr. Jones testified that when Defendant was in the front of his driveway he did not initially observe a gun, but that he saw the pistol when Defendant moved closer towards him. When questioned whether he was sure the gun was an actual pistol or a water gun, Mr. Jones responded he was "no expert on guns."[7] He admitted the only time he observed Defendant with a gun was the day of the incident. Mr. Jones acknowledged he did not "cower or duck" when Defendant pointed the gun at him, stating: "I know the Lord above, and if it was my point in time to go, it would have been my time to go." He said he was terrified though he "didn't show it." Mr. Jones also testified that Defendant had apologized to him and that he had accepted the apology. He testified that he signed the affidavit even though some of the attestations were untrue because he wanted "everything to be over with… [and] didn't want to see the young man go to jail."[8]

         Brenda testified that when she returned from work, Mr. Jones advised her that Defendant had approached him outside their home with a gun. She stated upon viewing the surveillance video, she "kn[e]w it was a gun" that Defendant brandished at Mr. Jones. Brenda called the police. Brenda testified that at no point did Mr. Jones advise her that the incident did not happen or instruct her not to call the police. On cross-examination, Brenda conceded that the gun Defendant was holding "could have been" a toy gun and she could not tell from the surveillance tape "whether it's a toy gun or a real gun." On redirect, however, Brenda noted that Mr. Jones had informed her the day of the incident that Defendant was holding a gun.

         Trooper Sean LeBoeuf responded to the 911 call. At the time of the incident, he was employed as a patrolman by the New Orleans Police Department. Trooper LeBoeuf testified that when he arrived on the scene, Mr. Jones advised him that he and his neighbor had an argument and it escalated to a point during which the neighbor went to Mr. Jones' house with a gun. Trooper LeBoeuf identified the body camera video, depicting his conversation with Mr. Jones. Trooper LeBoeuf viewed and collected the video surveillance footage from Mr. Jones' residence. He then went to Defendant's house on the corner of Elder Street and Franklin Avenue, where a woman advised him that Defendant was not home, but that she would contact him. Trooper LeBoeuf eventually spoke with Defendant later that day. Trooper LeBoeuf identified the body-cam video of his interaction with Defendant.[9] Trooper LeBoeuf testified that he never recovered a pistol.

         Trooper LeBoeuf admitted, on cross-examination, that he did not obtain a warrant to search Defendant's truck or house for a firearm. He also testified that he did not recover bullets or shell casings from Defendant's person. Trooper LeBoeuf testified that Defendant insisted during his interview that he had a water gun, not a real gun, and because Defendant was a felon and it "would be dumb for him to carry a gun." Defendant also advised Trooper LeBoeuf that he had thrown the gun in the Peoples Avenue Canal. Trooper LeBoeuf stated that the police did not search the canal for the disposed water gun. The canal was not searched because of woody overgrowth and because there was a shortage of manpower. He believed the surveillance video and Mr. Jones and Brenda's description of the incident was sufficient evidence to close the case.

         ERRORS PATENT

         A review of the record reveals a patent error with regard to Defendant's sentence. After the trial court adjudicated Defendant a fourth felony offender as to his convictions for aggravated assault with a firearm (count one) and obstruction of justice (count 3) and a third felony offender as to the conviction for felon in possession of a firearm (count two), the trial court imposed the following sentences: [10]

And so as to Count 1, I sentence you to serve 20 years in the custody of the Department of Corrections, credit for time served.
As to Count 2, I sentence you to serve 20 years in the custody of the Department of Corrections, credit for time served.
As to Count 3, I sentence you to serve 20 years in the custody of the Department of Corrections, credit for time served. All sentences are to run concurrent one with the other.
One second. Hold on. Come back, Mr. Jones. As to Count 2, I'm going to have to revise that sentence.
As to Count 2, vacate what I said earlier. I'm sentencing him -- under the law, it's 20 years without benefit of probation, parole, or suspension of sentence on that count. And all counts are to run concurrent.

         The trial court failed to specify that Defendant's twenty-year sentences regarding his fourth felony offender convictions for counts one and three were to be served "without benefit of probation or suspension of sentence" as required per La. R.S. 15:529.1(G). Nevertheless, La. R.S. 15:301.1(A) self-activates, providing that the sentence is deemed to contain the provisions relating to the service of the sentence without the benefit of parole, probation, and/or suspension of sentence. State v. James, 07-1578, p. 6 (La.App. 4 Cir. 6/25/08), 988 So.2d 807, 811. Thus, we need not vacate and remand for correction.[11]

         POST-VERDICT JUDGMENT OF ACQUITTAL

         Defendant contends that the trial court erred in denying his motion for post-verdict judgment of acquittal.

         A post-verdict judgment of acquittal "shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty." La. C.Cr.P. art. 821(B). This standard

is similar to the standard for appellate review of the sufficiency of evidence to support a defendant's conviction that the court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

State v. Williams, 04-1377, pp. 7-8 (La.App. 4 Cir. 12/1/04), 891 So.2d 26, 30. Thus, "[a] motion for post-verdict judgment of acquittal raises the question of sufficiency of the evidence." State v. Simmons, 07-0741, p. 15 (La.App. 4 Cir. 4/16/08), 983 So.2d 200, 208.

         The well-settled standard for reviewing convictions for sufficiency of the evidence was outlined by this Court in State v. Haynes, 13-0323, pp. 7-8 (La.App. 4 Cir. 5/7/14), 144 So.3d 1083, 1087-88:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1310. "[A] 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." State v. Smith, 600 So.2d 1319, 1324 (La. 1992).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La. 1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La. 1987). If a rational trier of fact ...

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