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State v. Kelly

Court of Appeals of Louisiana, Second Circuit

June 26, 2019

STATE OF LOUISIANA Appellee
v.
MICHAEL DEWAYNE KELLY Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 345696. Honorable Roy Brun, Judge.

          LOUISIANA APPELLATE PROJECT By: Meghan Harwell Bitoun Counsel for Appellant

          JAMES E. STEWART District Attorney Counsel for Appellee

          TOMMY JAN JOHNSON JOSHUA K. WILLIAMS WILLIAM C. GASKINS EDWIN L. BLEWER III Assistant District Attorneys

          Before PITMAN, GARRETT, and STONE, JJ.

          GARRETT, J.

         The defendant, Michael Dewayne Kelly, was charged with armed robbery. Following a jury trial, he was convicted of attempted armed robbery. He was subsequently adjudicated a fourth felony offender and sentenced to 60 years at hard labor without benefit of parole, probation, or suspension of sentence. We affirm the defendant's conviction, adjudication as a fourth felony offender, and sentence.

         FACTS

         On December 13, 2016, the elderly victim drove to his place of business on Pro Street in Shreveport. As he was preparing to turn from Curtis Lane onto Pro Street, a Suburban was trying to turn from Pro Street. The victim motioned for it to turn, which it did. The victim then drove up to his business, went inside, and locked the front door. About three to four minutes later, Kelly - a complete stranger to the victim - knocked on the door. When the victim opened the door, Kelly said he was looking for a job and asked if the victim was hiring. The victim said he was not.

         The men then stood at the doorway for about five minutes, talking about how bad business was. According to the victim, whenever anyone came in the business, he would leave the door open. While he was talking to Kelly, he was leaning against the doorjamb, half in and half out of the building. The victim said this was his usual practice, in case something happened with a stranger.

         When Kelly asked if he could use the victim's restroom, the victim agreed and invited him to grab a cold drink on the way out. While Kelly was in the restroom, he called to the victim, claiming that there was a terrible water leak in the bathroom. The victim told him not to worry about it and that he would fix it later. The victim later told the police that he felt Kelly was trying to lure him to the back of the business.

         After exiting the restroom, Kelly did not get a Coke or a bottle of water, as he had been invited to do by the victim. Instead he walked to the open door, which he grabbed and shut. Kelly's actions startled the victim, who caught his shoe cleats on a rug and fell backwards. Kelly got on top of him, placed a pistol to his head, and said, "I'm going to kill you. Where's the money?" The victim told Kelly he had no money and begged for his life. He told Kelly that he had a small wallet with maybe $15 to $20 in his left-hand shirt pocket.

         The victim had a .38 caliber snub nose revolver in his right-hand pants pocket, which he was able to maneuver underneath him to keep Kelly from discovering it. Deciding that Kelly was going to kill him once he got the wallet, the victim grabbed the hand with which Kelly was holding his gun and twisted as hard as he could. When Kelly started to stand up, the victim kicked him between the legs. Kelly hit the door, then stumbled outside, where he dropped the victim's wallet in the parking lot.

         The victim jumped up, grabbed the open door with his left hand, and tried to shut it so he could lock it. Kelly began to shoot at him. Fortunately, instead of the victim, the bullets hit the building. The victim returned fire and hit Kelly multiple times.[1] The victim then shut and locked the door. Running into the break room, he called 911 and began loading his shotgun because he feared Kelly had a partner who would come through the shop door.

         As the victim watched from the break room window, he saw Kelly, who was lying in the road, motion to a Suburban parked 20 to 30 feet down the road. The victim thought it was the same Suburban he had seen earlier, but he was "not absolutely positive." The Suburban raced up, and the driver jumped out. The victim saw the driver bend down twice; he assumed that the man picked up the wallet and Kelly's gun, neither of which were recovered by the police. The driver then fled in the Suburban, leaving Kelly lying on the ground. Kelly, who initially gave the police a false name, was transported to the hospital for treatment of his injuries.

         Kelly was charged by bill of information with armed robbery, in violation of La. R.S. 14:64, and possession of a firearm or carrying a concealed weapon by a person convicted of domestic abuse battery, in violation of La. R.S. 14:95.10. The firearm charge was subsequently dismissed.

         Jury trial was held in June 2018. The state presented the testimony of the victim, a responding patrol officer, and a member of the crime scene investigation unit who processed the crime scene. Photos of the crime scene were admitted. The defendant did not testify, but his medical records were introduced. During their deliberations, the jurors requested that the trial judge advise whether something had been admitted into evidence and that they be given instructions on various offenses. As to the former request, the trial court declined to comment on the evidence, and, as to the latter, it recharged them as to the pertinent offenses. Thereafter, the jury returned a responsive verdict of attempted armed robbery. Kelly's motion for post-verdict judgment of acquittal was denied by the trial court.

         The state filed a habitual offender bill of information in which it asserted that Kelly had four prior felony convictions: 2004, simple burglary of a vehicle (Bossier Parish); 2005, burglary of a vehicle (Bossier Parish); 2006, illegal possession of stolen things (Caddo Parish); and 2010, domestic abuse battery with strangulation (Caddo Parish). Kelly filed a motion to quash. At the ensuing hearing, the state agreed to proceed without the 2005 conviction due a defect. Also, the defendant rejected the state's offer of a 40-year sentence under the habitual offender bill.

         On September 6, 2018, a hearing was held on the habitual offender bill. The state presented the testimony of an expert in fingerprint analysis, who verified that Kelly was the same person whose fingerprints were affixed to the bills of informations in the 2004, 2006, and 2010 convictions. Certified copies of the bills of information, minutes, and transcripts of the guilty pleas in each of the predicate offenses were admitted into evidence. The trial court adjudicated Kelly a fourth felony offender and sentenced him to 60 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant's timely motion to reconsider sentence was denied.

         The defendant appealed. His eight assignments of error assert issues pertaining to: (1) the reinstruction of the jury; (2) institution of prosecution by bill of information instead of indictment; and (3) sentencing.

         REINSTRUCTION OF JURY

         In two assignments of error, Kelly raises issues pertaining to questions asked by the jurors after they retired to deliberate. He argues that the trial court erred in reinstructing the jury by only partially instructing as to the law on attempt and in failing to instruct as to the possibility of a not guilty verdict. Kelly further contends that the trial court's "selective reinstruction" amounted to an expression of the trial court's opinion that a not guilty verdict did not apply.

         Definitions of Offenses

         Before retiring for deliberations, the jury was given a comprehensive charge, which included all responsive verdicts and a possible verdict of not guilty, as well as a complete charge on attempt. Kelly takes no issue with this original charge to the jury. After retiring to deliberate, the jurors requested that the jury charge be brought into the jury room. They specifically wanted the instructions on the various offenses included in the jury charge. The defense agreed, but the state objected. After the jurors returned to the courtroom, the trial court verified with them that "there was a question about the various offenses." It then reread to them the definitions of armed robbery, first degree robbery, and simple robbery. It also reread the provisions of La. R.S. 14:27(A), which sets forth the basic elements of attempt. After the trial court finished reading that subsection, it inquired of the jurors: "Is ...


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