State v. Diggins
| Decision Date | 23 October 2013 |
| Docket Number | No. 2012–KA–0015.,2012–KA–0015. |
| Citation | 126 So.3d 770 |
| Parties | STATE of Louisiana v. Robert DIGGINS. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Felicity Strachan, Assistant District Attorney of Orleans Parish, New Orleans, LA, for the State of Louisiana.
Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
Defendant was convicted by a unanimous twelve member jury of the attempted second degree murder of Mr. Daniel Leban. Upon his conviction, the State filed a multiple offender bill charging defendant as a fourth felony offender. Having adjudicated defendant as a fourth felony offender, the trial court sentenced defendant to life imprisonment without the benefit of probation or suspension of sentence.
Defendant appeals his conviction and sentence, and he asserts seven assignments of error.1 After reviewing defendant's assignments of error in light of the entire record, we find no merit to any of defendant's arguments on appeal. For all of the following reasons, we affirm defendant's conviction for attempted second degree murder, his adjudication as a fourth felony offender, and his sentence to life imprisonment. Before discussing our reasons to affirm, we present the facts relevant to this appeal.
Defendant was convicted of the attempted second degree murder of Mr. Daniel Leban, which occurred on February 15, 2008 near the intersection of McCain Street and Old Gentilly Road in New Orleans.
At that time, Leban lived at 3601 McCain Street, on a dead end block under the Interstate 10 high rise. Leban lived alone in a tent next to his blighted house on a side of the dead end street with only an auto shop garage next to his property and a few trailers across McCain Street. A.J. Messina ran the auto shop garage but didn't live there. As a result, Leban kept watch on his block and the auto shop.
On February 14, 2008, Leban observed defendant drive down the street to the auto shop and begin speaking with A.J. Messina. Leban learned that A.J. had agreed to paint defendant's truck. The next day, February 15, 2008, around 2 p.m., Leban saw defendant bring a truck to the shop. Leban approached defendant and A.J., and told them that he would prefer that the truck be parked in the auto shop garage because he did not want to look after the truck parked on his street. Defendant agreed to have his truck placed inside the auto shop garage, and left in a tan vehicle with an unidentified person.
At 6 p.m. that evening, Leban observed defendant come back to the auto shop in a tan vehicle, but A.J. was not there. Defendant approached Leban asking about A.J. and wanting to contact him. Defendant asked to use Leban's cell phone to call A.J. When Leban handed it to him, defendant took the phone and drove away with it. Leban called 911 to report that his cell phone had been stolen. He told the 911 operator that the man who stole his phone had left his truck at the garage next door to Leban's house earlier that day. Leban then asked for officers to come out to the scene.
Responding to the dispatch call of a disturbance, National Guard Military Policeman Trevor Abney and his partner, Sgt. Litton, arrived on the scene at Old Gentilly Road and McCain Street to speak with Leban. Ofc. Abney and Sgt. Litton were on assignment to assist the NOPD with patrols and calls for service. When they arrived, Ofc. Abney spoke with Leban, and learned about the stolen cell phone. Ofc. Abney then notified the NOPD that the complainant, Leban, wanted to fill out a police report at the station the next day. At that point, Ofc. Abney and his partner left the scene.
Later the same evening, Leban was sitting in his car parked on McCain Street when defendant returned, and approached Leban's car. Defendant pointed a gun at Leban, and told him to go get the truck out of the garage or else defendant would shoot him. Leban walked with defendant up to the garage, but then turned and started to run away. As he was running, Leban heard gunshots, one of which hit him, and he fell face down on the ground.
Mr. Oliver Harrison, who lived in a trailer on McCain Street, called 911 to report gunfire, and that a man was lying in the street. Ofc. Abney and his partner heard the NOPD dispatch call of aggravated battery by firearm at the same location they responded to earlier that day. Ofc. Abney and his partner responded to the call, and, upon arriving on the scene, the officers found Leban lying in the street with a gunshot wound to his back. Ofc. Abney asked Leban if the same man who had stolen his cell phone had shot him. Leban indicated to Ofc. Abney that it was the same person.
NOPD Det. James Shepak and Det. John Duzac arrived on the scene to investigate the shooting. In the course of their investigation, they learned that Leban identified the shooter as a man named “Rob” whose truck was being kept at the auto shop. A.J. Messina arrived on the scene and showed the detectives where the truck was being kept. Det. Shepak testified that Det. Duzac located a piece of paper on the ground next to the truck, and identified it as a letter from FEMA addressed to Robert Diggins (“FEMA letter”). Based on the information gathered from Leban, Messina, and the FEMA letter, the detectives developed defendant as a suspect in the shooting. Det. Shepak then compiled a photographic lineup that included a picture of defendant and five fill-in pictures.
Det. Shepak and Sgt. Chris Billiot then went to University Medical Center to conduct the photographic lineup with Leban. The detectives conferred with Dr. Mark Dominguez, the trauma surgeon attending to Leban, who informed them that Leban was alert, responsive, had not yet been administered any medications, and was able to talk with the detectives. With Dr. Dominguez as a witness, the detectives showed the photographic lineup to Leban, who identified the photo of defendant in the lineup as the shooter.
Based on Leban's identification of defendant, an arrest warrant was issued for Robert Diggins. He was arrested by the NOPD on April 30, 2008. On July 1, 2008, the State charged defendant with the attempted second degree murder of Leban.
Defendant pled not guilty, and filed a motion to suppress the evidence and photo identification. At the motions and probable cause hearing, Det. Shepak testified about the investigation of defendant, and about the compilation and presentation of the photographic lineup.2 Based on the testimony and evidence presented, the trial court denied defendant's motion to suppress and found sufficient probable cause to sustain the charge of attempted second degree murder.
Defendant elected to have a trial by jury, and a unanimous twelve member jury found defendant guilty on May 11, 2010. The State subsequently filed a multiple offender bill seeking to have defendant sentenced as a fourth time felony offender under the Habitual Offender Law, La. R.S. 15:529.1. The trial court held a multiple bill hearing, at which testimony and evidence of defendant's three prior felony convictions were presented. The trial court then found defendant guilty as charged of the multiple bill as a fourth offender. The trial court sentenced defendant to life imprisonment at hard labor without the benefit of probation or suspension. This appeal followed.
A review of the record for errors patent reveals error in the trial court's imposition of sentence. At the sentencing hearing, the trial court referenced the incorrect subsection and paragraph of the Habitual Offender Law under which defendant's sentence was imposed, but the minutes and sentencing order reflect a proper sentence in conformity with the correct provisions of the statute. The trial court also failed to restrict defendant's eligibility for parole in accordance with the relevant sentencing statutes. Although La. R.S. 15:530.1 self-activates the correction to the parole eligibility restriction, we clarify the specific provision of the statute by which defendant's sentence was imposed.
Defendant was found guilty as charged of attempted second degree murder, in violation of La. R.S. 14:(27)30.1. Upon a first conviction for this crime, the relevant sentencing statute provides, “If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:27(D)(1)(a). Having been adjudicated as a fourth felony offender, however, defendant's sentence must conform to the statutory provisions of the Habitual Offender Law.
For a fourth felony offender, La. R.S. 15:529.1(A)(4) provides:
If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
The three prior felony convictions charged in defendant's multiple offender bill include...
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