FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
325, 997 HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE
K. Bauman Louisiana Appellate Project Counsel for
Defendant/Appellant: Antonio Merquis Harris
Phillip Terrell, Jr. District Attorney John T. Giordano
Assistant District Attorney Counsel for Appellee: State of
Antonio Merquis Harris In Proper Person Louisiana State
composed of D. Kent Savoie, Candyce G. Perret, and Jonathan
W. Perry, Judges.
JONATHAN W. PERRY, JUDGE
Antonio Merquis Harris ("Defendant"), appeals his
conviction for armed robbery, a violation of La.R.S. 14:64;
possession of a firearm by a convicted felon, a violation of
La.R.S. 14:95.1; attempted second degree murder, two counts,
violations of La.R.S. 14:27 and 14:30.1; intimidating a
witness, a violation of La.R.S. 14:129.1; and possession of a
stolen firearm, a violation of La.R.S. 14:69.1. With the
exception of Defendant's conviction for possession of a
stolen firearm, which we reverse, we affirm Defendant's
other convictions, amend one of Defendant's sentences,
and remand this matter with instructions.
6, 2015, at 5:00 a.m., Andrew Davis ("Davis"), a
Frito-Lay route salesman, stopped at the Save More
convenience store in Alexandria, Louisiana. After he loaded
empty boxes in the back of his truck, an individual wearing a
sweatshirt with a hood approached him. The individual pointed
a handgun at Davis and demanded his workbag that contained a
check made out to Frito-Lay, cell phones, and a scanner.
Also, the individual demanded Davis's wallet and
telephone. When he threw his phone to the hooded individual,
Davis ran into the convenience store and called the police.
Later, Davis would identify Defendant in court as the
individual who robbed him.
speaking with police, Davis returned to work. Between 7:30
a.m. to 8:00 a.m., Davis and his boss drove his boss's
vehicle to the area of the robbery to look for Davis's
workbag should it have been discarded. As they drove about
the area, they saw a few guys staring at them; some were
standing on the street and others were standing under a
nearby carport. Suddenly, Davis and his boss were fired upon;
three bullets struck the passenger door and one struck the
outside, passenger mirror. At that point, Davis and his boss
fled the area, drove to Damico's Bingo Hall, and called
addition to Davis, several witnesses, whose testimony will be
elaborated upon later, testified as to Defendant's
identity, including Jeraldine Hampton ("Hampton"),
an eyewitness to the shooting; and Delric Carpenter
("Carpenter"), an area resident. The jury was also
presented with forensic evidence that matched a bullet from
the truck with a handgun discarded at Defendant's
residence near Davis's cellphone and product scanner.
They also heard jailhouse telephone evidence where Defendant
admitted the police recovered "my gun, my cell phone,
and a check out my safe." The jury also viewed the
handgun recovered from the top of Defendant's carport and
the check made out to Frito-Lay that was found in
Defendant's home safe. Fingerprint evidence was also
presented that demonstrated Defendant was a prior- convicted
felon at the time of these offenses.
multi-day jury trial, Defendant was convicted on all charges
enumerated above that were brought against him in the bill of
information. After receiving a presentence investigative
report, the trial court sentenced Defendant to forty years at
hard labor for armed robbery; ten years at hard labor for
possession of a firearm by a convicted felon; twenty years at
hard labor for each conviction for attempted second degree
murder; ten years at hard labor for intimidating a witness;
and one year at hard labor for illegal possession of a stolen
firearm. The court imposed all the sentences concurrently.
timely appealed, presenting four assignments of error argued
by court-appointed counsel, as well as one pro se assignment
of error. They are as follows: (1) the jury erred in
returning a verdict of guilty of illegal possession of a
stolen firearm; (2) the convictions were based on
circumstantial evidence that failed to establish
Defendant's identity beyond a reasonable doubt, and the
jury was unduly influenced by an invalid charge, namely the
illegal possession of a stolen firearm;(3) the trial
court erred in denying Defendant's challenges for cause
regarding prospective jurors Katrina McCain
("McCain") and John Parker ("Parker"),
and jurors James Alwell ("Alwell") and Kenneth
Taylor ("Taylor"); (4) the trial court erred in
granting the State's challenges for cause regarding
prospective jurors Ben Rosier ("Rosier") and
Jonathan Richards ("Richards"); and (5) the trial
court erred in allowing Defendant to proceed to trial in leg
compliance with La.Code Crim.P. art. 920, we review all
criminal appeals for errors patent on the face of the record.
See State v. Oliveaux, 312 So.2d 337 (La.1975).
After carefully reviewing the record, we find one error
patent, as well as court minutes of sentencing that require
first note the trial court sentenced Defendant to serve ten
years at hard labor without benefit of parole, probation, or
suspension of sentence for intimidating a witness. Louisiana
Revised Statutes 14:129.1, the applicable sentencing statute,
does not authorize a restriction of benefits. Accordingly,
Defendant's sentence is illegally excessive. Therefore,
we amend Defendant's sentence for intimidating a witness
to delete the denial of benefits and remand to the trial
court with instructions to amend the court minutes
our review of the sentencing transcript shows the trial court
imposed a $1, 000.00 fine as required by La.R.S. 14:95.1(B)
for Defendant's conviction for possession of a firearm by
a convicted felon. Notwithstanding, the court minutes fail to
reflect the imposition of this fine. "It is well
established that where there is a conflict between the
minutes and the transcript, the transcript shall
prevail." State v. Edwards, 626 So.2d 501, 503
(La.App. 3 Cir. 1993), writ denied, 93-3125 (La.
2/3/95), 649 So.2d 400. Therefore, we direct the trial court
to correct the sentencing minutes to include the $1, 000.00
fine that was imposed for Defendant's conviction of
possession of a firearm by a convicted felon.
OF THE EVIDENCE
is a common thread between the first two assignments of
error, namely, the sufficiency of the evidence regarding
Defendant's conviction for the illegal possession of a
stolen firearm and the sufficiency of the evidence as to all
of Defendant's convictions. In the first assignment of
error, Defendant contends the State failed to present
sufficient evidence to support his conviction for the illegal
possession of a stolen firearm. In the second assignment of
error, Defendant contends the evidence was insufficient to
prove any of the charged offenses and particularly asserts
that the State failed to establish his identity beyond a
reasonable doubt. Thus, we will address those two assignments
of error first.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.
5/7/97), 695 So.2d 1367, 1371, we articulated the
well-established analysis for such claims:
When the issue of sufficiency of evidence is raised on
appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing
denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126
(1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105
(La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate
court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State
ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this
Court to affirm a conviction, however, the record must
reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.
Illegal Possession of a Stolen Firearm
Revised Statutes 14:69.1(A)(1) provides: "Illegal
possession of stolen firearms is the intentional possessing,
procuring, receiving, or concealing of a firearm which has
been the subject of any form of misappropriation." In
State v. Johnson, 09-862, p. 9 (La.App. 3 Cir.
2/3/10), 28 So.3d 1263, 1270, this court said, "Based on
[La.R.S. 14:69.1], the State had to prove that the defendant
intentionally possessed a firearm, that the firearm was the
subject of robbery or theft, and that he knew or should have
known the firearm was the subject of a robbery or
careful review of the record shows a paucity of evidence
regarding this offense. Although the State determined that
the handgun was stolen from James Smith and that robbery was
not reported, the evidence is void of any proof that
Defendant was involved with the theft or that he knew or
should have known the handgun was stolen. Therefore, we
reverse Defendant's conviction for illegal possession of
a stolen firearm and vacate the sentence imposed for that
conviction. Identity Evidence
pro se assignment of error, Defendant first contends the
State failed to establish his identity beyond a reasonable
doubt. The jurisprudence on this area of
the law is well established:
"In reviewing the sufficiency of the evidence to support
a conviction, an appellate court in Louisiana is controlled
by the standard enunciated by the United States Supreme Court
in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). . . . [T]he appellate court must
determine that the evidence, viewed in the light most
favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime
had been proved beyond a reasonable doubt." State v.
Captville, 448 So.2d 676, 678 (La.1984). Furthermore,
when the key issue is the defendant's identity as the
perpetrator, rather than whether the crime was committed, the
State is required to negate any reasonable probability of
misidentification. State v. Weary, 03-3067 (La.
4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.
6/29/01), 796 So.2d 649. Positive identification by only one
witness is sufficient to support a conviction.
Weary, 03-3067 at p. 18, 931 So.2d at 311;
Neal, 00-0674 at p. 11, 796 So.2d at 658; State
v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is the
factfinder who weighs the respective credibilities of the
witnesses, and this court will generally not second-guess
those determinations. State v. Bright, 98-0398, p.
22 (La. 4/11/00), 776 So.2d 1134, 1147.
State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943
So.2d 1047, 1051.
subject of the armed robbery conviction, Davis, the Frito-Lay
deliveryman, identified Defendant as the armed robber. Davis
described the events of the robbery, including that
Defendant's face was not covered. He also identified
Defendant in open court. The evidence further showed that a