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State v. Roberts

Court of Appeals of Louisiana, Third Circuit

May 1, 2019

STATE OF LOUISIANA
v.
DEVONTE LEN ROBERTS

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 26727-13 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE.

          John F. DeRosier District Attorney Fourteenth Judicial District Shelley A. Deville Ross Murray, Assistant District Attorneys COUNSEL FOR APPELLEE: State of Louisiana.

          Chad M. Ikerd, Louisiana Appellate Project, COUNSEL FOR DEFENDANT-APPELLANT: Devonte Len Roberts.

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

          ELIZABETH A. PICKETT JUDGE.

         FACTS

         On December 12, 2013, the defendant, Devonte Len Roberts, was charged by bill of information with armed robbery, in violation of La.R.S. 14:64; armed robbery with a firearm, in violation of La.R.S. 14:64.3; aggravated assault upon a peace officer with a firearm, in violation of La.R.S. 14:37.2; attempted armed robbery, in violation of La.R.S. 14:64; attempted armed robbery with a firearm, in violation of La.R.S. 14:64.3; and aggravated assault with a firearm, in violation of La.R.S. 14:37.4. All six counts arose out of a September 26, 2013 robbery of a Wing Stop restaurant.

         Prior to beginning the trial on January 29, 2018, the state filed an amended bill of information charging the defendant with one count of armed robbery with a firearm, in violation of La.R.S. 14:64 and 14:64.3; one count of aggravated assault upon a peace officer with a firearm, in violation of La.R.S. 14:37.2; one count of attempted armed robbery with a firearm, in violation of La.R.S. 14:27, 14:64, and 14:64.3; and four counts of aggravated assault with a firearm, in violation of La.R.S. 14:37.4.

         Following a two-day trial, the defendant was unanimously found guilty as charged on all counts except count two, where a ten-two jury found the defendant guilty of the responsive verdict of attempted aggravated assault upon a peace officer in violation of La.R.S. 14:27 and 14:37.2.

         On April 18, 2018, the defendant was sentenced to serve ten years at hard labor on each count of aggravated assault with a firearm; five years at hard labor on the attempted aggravated assault on a peace officer; and thirty years at hard labor for both the armed robbery with a firearm and the attempted armed robbery with a firearm; all of the defendant's sentences were ordered to run concurrently to each other.

         The defendant now appeals his convictions and sentences, alleging a single assignment of error, namely, the state failed to sufficiently prove he was the individual who robbed the Wing Stop restaurant.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there is an error patent concerning two of the defendant's sentences. The trial court imposed indeterminate sentences for the defendant's convictions of armed robbery with the use of a firearm and attempted armed robbery with the use of a firearm.

         Louisiana Revised Statutes 14:64 provides a sentence of ten to ninety-nine years without the benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:64.3 requires the imposition of an additional five years at hard labor without the benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under La.R.S. 14:64 (and 14:27 for attempted armed robbery).

         For each conviction, the defendant was sentenced to serve thirty years at hard labor with no indication of whether that included the additional five years required by La.R.S. 14:64.3. In State v. White, 42, 725 (La.App. 2 Cir. 10/24/07), 968 So.2d 901, the defendant was convicted of two counts of armed robbery with a firearm and sentenced to thirty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on each count to run concurrently. In its error patent review, the court noted that the trial court did not specify what portion, if any, of the defendant's thirty-five year hard labor sentence without benefits was imposed under La.R.S. 14:64.3. The court found that the absence of a specification that the defendant's sentences included a term under La.R.S. 14:64.3 rendered the defendant's sentence indeterminate. The court vacated the sentences and remanded the matter for resentencing for clarification of whether the defendant's sentences included any additional punishment under La.R.S. 14:64.3. Id. See also State v. Billingsley, 11-1425 (La.App. 3 Cir. 3/14/12), 86 So.3d 872.

         Accordingly, in this matter, we vacate the sentences imposed for the convictions of the armed robbery with a use of a firearm and attempted armed robbery with use of a firearm and remand the case to the trial court for resentencing in accordance with La.R.S. 14:27, 14:64, and 14:64.3. The trial court should clearly set forth the portion of the sentence enhanced under La.R.S. 14:64.3.

         ASSIGNMENT OF ERROR [1]

         The state failed to sufficiently prove that Devonte Roberts was the person who robbed the Wing Stop and ran from police.

         DISCUSSION

         The state's first witness was Robert Broussard, the supervisor of information and custodian of records for Calcasieu Parish 911. Mr. Broussard described the technical manner in which 911 calls are monitored and recorded and acknowledged providing the Lake Charles Police Department with a CD containing calls related to the robbery of the Wing Stop on September 26, 2013. Those calls were introduced into evidence and played for the jury.

         The state then called Jasmine Miller, the manager of the Wing Stop at the time of the robbery. Ms. Miller testified that right around midnight, just before the restaurant closed, she noticed someone slowly jogging up to the store and "[she] noticed that he had Timberland boots on, a facemask, and a gun." She told everyone they were getting robbed and "grabbed the phone and [she] immediately called 911 and [she] hid." Ms. Miller did not know what color the mask was and did not make eye contact with the robber; however, she described his boots as "very distinct boots," noting they were yellow-colored work boots. She knew the robber was a black guy but could not recall what he was wearing aside from the boots and mask.

         Ms. Miller could not identify the defendant in court as the person who robbed the Wing Stop, but she testified she knew the person arrested that night was the person who committed the robbery because of his distinctive walk. She also noted the person arrested that night "had the Timberland boots on." She noted the robber was thin and around her height, which was five feet, nine inches.

         On cross-examination, Ms. Miller testified that she sees Timberland boots often because "[a] lot of people wear them, especially [her] age." After reviewing her previously recorded statement to police, Ms. Miller acknowledged she never mentioned the boots to law enforcement on the night of the robbery, but noted she told them the robber was dark-skinned and noted the defendant was light-skinned. She also acknowledged she told law enforcement the robber was wearing a grey t-shirt, which she had not remembered during her ...


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