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
E. STEWART District Attorney Counsel for Appellee
JAN JOHNSON JOSHUA K. WILLIAMS WILLIAM C. GASKINS EDWIN L.
BLEWER III Assistant District Attorneys
PITMAN, GARRETT, and STONE, JJ.
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.
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.
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.
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
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
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
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 ...