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State v. Hardyway

Court of Appeals of Louisiana, Second Circuit

February 27, 2019

STATE OF LOUISIANA Appellee
v.
STEVEN DEVON HARDYWAY Appellant

          Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 67, 865 Honorable Cynthia Tregle Woodard, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant

          STEVEN DEVON HARDYWAY Pro Se

          JOHN FITZGERALD BELTON District Attorney Counsel for Appellee

          LEWIS ALLEN JONES TRACY WAYNE HOUCK Assistant District Attorneys

          Before WILLIAMS, PITMAN, and COX, JJ.

          COX, J.

         This criminal appeal arises from the Third Judicial District Court, Lincoln Parish. The defendant, Steven Hardyway, was found guilty as charged of attempted first degree murder and armed robbery. For the conviction of attempted first degree murder, Hardyway was sentenced to 50 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. For the conviction of armed robbery, Hardyway was adjudicated a second-felony habitual offender and sentenced under La. R.S. 15:529.1 to 99 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The sentences were imposed to run concurrently. Hardyway now seeks review of his convictions and sentences. For the following reasons, we vacate Hardyway's conviction and sentence for attempted first degree murder. We affirm Hardyway's conviction of armed robbery and vacate his habitual offender adjudication and sentence for armed robbery and remand for further proceedings.

         FACTS

         On December 30, 2015, Hardyway was charged with the attempted first degree murder of Myisha Jefferson, in violation of La. R.S. 14:30 and La. R.S. 14:27, and the armed robbery of Ms. Jefferson, in violation of La. R.S. 14:64.

         On February 16, 2017, the defense filed a motion to quash the bill of information on grounds that the charges violated Hardyway's protection against double jeopardy. Hardyway argued that he could not be prosecuted for attempted first degree murder that allegedly occurred during the commission of an armed robbery, while also being prosecuted under a second charge for the same armed robbery offense. The State argued in response that there was no violation of double jeopardy because attempted first degree murder had an additional required element - specific intent to kill or inflict great bodily harm. The State also argued that attempted first degree murder does not require the commission or attempted commission of armed robbery as the only underlying basis for the charge and is not restricted to armed robbery as the only enumerated felony. The State further argued that the facts of this case suggested that Hardyway's actions constituted more than one of the felonies enumerated in La. R.S. 14:30, and since the bill of information did not specify a particular enumerated felony, there was no reason for the court to grant the motion to quash at that time. The trial court denied the motion to quash, but reserved the right to file a per curiam in due course if appropriate. The defense did not seek supervisory review of the ruling.

         The evidentiary portion of the trial began on August 8, 2017, with testimony from Ms. Jefferson. She stated that she began working as a shift supervisor at the Subway restaurant on West California Avenue in Ruston, Louisiana, in late July or early August of 2015. She testified that over the next few months, she occasionally shared a shift with a coworker named Steven Hardyway. One rainy day, she gave Hardyway a ride to his girlfriend's house. She stated that Hardyway's employment was terminated in late October of 2015.

         Ms. Jefferson testified that on November 4, 2015, she worked the closing shift, from 4:00 p.m. to 10:00 p.m. Once the store was closed, she and two other female employees cleaned up, and the other two employees left. She testified that she closed out the register, set the security alarm, and proceeded to leave. As she was leaving, two African-American males wearing masks entered through the back door. Ms. Jefferson recalled that one of the masks was a devil-style mask with horns, but could not remember the second mask.[1] The men demanded that she turn off the alarm and give them the money in the safe. Ms. Jefferson stated that she immediately recognized one of the men's voices and his Converse sneakers and camouflage shorts, as belonging to her former co-worker, Hardyway. Ms. Jefferson could not clearly remember which intruder wore which mask. She did not recall any identifiable information about the other man, whose voice she did not recognize

         Ms. Jefferson stated that both men struck her and repeatedly threatened to shoot her while demanding that she open the safe. Ms. Jefferson testified that the safe could only be opened by keying a code into a digital keypad. She stated that when the men demanded she open the safe, she broke the digital keypad off the safe, thinking it would cause the safe to open, but it did not.

         Ms. Jefferson testified that she told the two men that the safe could not be opened because the digital keypad was broken. The men continued to hit her and threatened to shoot her if she did not open the safe. Ms. Jefferson stated that she told the two men that she had a tire tool in her vehicle that might be used to pry open the safe, but she was unable to open the safe with the tool.

         Ms. Jefferson stated that the man she recognized as Hardyway called her "Myisha," and asked if she knew who he was. In hopes of protecting herself, Jefferson told him that she did not know him. She testified that the same man ordered her to lie down on the floor in the drive-through window area. Ms. Jefferson stated that while she was lying down, Hardyway took her wallet, which contained her money, personal bank card, and work credit card.

         Ms. Jefferon stated that Hardyway took the money and card from her wallet, then shot at her. Ms. Jefferson attempted to run to the front door of the restaurant. She testified that as she attempted to unlock the front door, Hardyway hit her in the head with a gun and stabbed her multiple times. She stated both men left after the attack. Ms. Jefferson testified that after the attack, she went outside through the front door, but was unable to find help, so she returned to the drive-through area, where she called 9-1-1 and collapsed on the floor. She stated that she lost consciousness a couple of times while she was trying to get help.

         At trial, Ms. Jefferson recalled that earlier in the day on November 4, 2015, Hardyway's girlfriend asked her if she was closing that night. Ms. Jefferson confirmed that she was closing.

         Ms. Jefferson identified State's Exhibit S-2 as the same camouflage shorts worn by the man she recognized as Steven Hardyway on the night of the attack. She also identified State's Exhibits S-3 and S-4 as the same faded black Converse shoes that she recalled Hardyway wearing at work and when he attacked her. Ms. Jefferson identified Hardyway in court as her former co-worker and the man whose voice she recognized when he entered the Subway, stole money, and attacked her.

         The factual basis of Ms. Jefferson's testimony about this event was corroborated by the Subway security surveillance video. The video played for the jury showed two masked men armed with guns entering through the back of the store. The video shows that the armed men hit Ms. Jefferson and threatened her life if she did not turn off the alarm and open the safe. The video shows, from multiple angles, the man in the alien mask taking bills that Ms. Jefferson was able to retrieve from the safe's top slot as she laid them on the floor. The video also shows that the armed intruders searched Ms. Jefferson's person and removed her wallet with her money and bank card. The video shows the man in the alien mask taking the coin register off the counter. The video, along with the audio, shows that the man in the alien mask continued a dialogue of threats against the victim as he hit her and watched her struggle to open the safe with the tire tool. The video shows the alien-masked man fired a gun at Jefferson six times, and then returned and chased after her as she attempted to escape. Another gunshot is heard and then the sound of Jefferson screaming before the man runs off. The video shows Jefferson collapsing to the floor in the drive through window area and calling 9-1-1.

         Linda Echols, Director of Health Information Management for Northern Louisiana Medical Center in Ruston, Louisiana, testified about Ms. Jefferson's medical records after the attack. She stated that in addition to being shot with a small caliber gun, Ms. Jefferson's medical records revealed the following:

[M]ultiple stab wounds to the chest, approximately 35 to 40 total. She had bilateral pheumothoraces. She also had very deep extensive laceration to the right side of her neck. She had injuries to the left axilla as well as extensive injury to the left wrist.
The patient was resuscitated and emergently taken to the operating room… She had bilateral ear lacerations which were actually near amputations. She underwent closure of multiple stab wounds. She underwent exploration of the left wrist bleeding site with ligation of the radial artery from the dorsal aspect. She had complex repair of right neck laceration and chest tube placement.

         Captain Eric Hanna, of the Ruston Police Department, testified that due to Ms. Jefferson's condition, she was restricted in her communications with the investigating officers immediately after the attack. He stated that through a series of questions, officers were able to discern from Ms. Jefferson's responses that one of her attackers was Hardyway, a former co-worker.

         Victoria Robbins, the manager of Subway on November 4, 2015, testified that while reviewing the surveillance video, she recognized the clothing and voice of one of the armed intruders as belonging to her former employee, Hardyway. Robbins testified that Hardyway worked at that Subway from late July or early August 2015 until October 2015, for approximately 20 hours per week. Robbins stated that Hardyway had worn the Converse sneakers and the camouflage shorts to work, and she was familiar with his voice because she worked with Hardyway about 10 hours each work week. She also testified that the person she recognized as Hardyway knew things that only employees or former employees would know, such as the location of the keys to the cash registers. Robbins testified that when checking the store after the robbery, she found the store was short some money.

         Lieutenant Henry Wood, of the Ruston Police Department, testified that after Hardyway was identified as one of the armed intruders by both Ms. Robbins and Ms. Jefferson, the officers searched for Hardyway at known residences, including the home of Virgina Castle, Hardyway's grandmother. Detective J.D. Driskall, of the Lincoln Parish Sheriff's Department, and Lt. Wood searched Ms. Castle's home. Det. Driskall and Lt. Wood testified that in the rear bedroom closet, officers found the camouflage shorts that Hardyway was seen wearing in the security video.

         Ms. Castle testified that Hardyway came to her Grambling, Louisiana, home on the morning of November 5, 2015, changed clothes in the rear bedroom, and left again. Ms. Castle identified exhibit S-2 as the shorts Hardyway wore into her home before changing.

         Shequita Jones, Hardyway's mother, testified that she spoke with Hardyway the morning of November 5, 2015, and told him that law enforcement officers were looking for him in connection with the Subway robbery. Ms. Jones stated that she wanted her son to turn himself in to law enforcement. She testified that she called the police to notify them that Hardyway was at his aunt's house. When the police arrived at the aunt's house, Hardyway was no longer there. Det. Driskall ...


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