State v. Robinson

• Citation: 11 So.3d 613
• Decision Date: 13 May 2009
• Docket Number: No. 2008-KA-0652.,2008-KA-0652.
• Parties: STATE of Louisiana v. Randolph ROBINSON.
• Court: Court of Appeal of Louisiana (US)

11 So.3d 613

STATE of Louisiana v. Randolph ROBINSON.

No. 2008-KA-0652.

Court of Appeal of Louisiana, Fourth Circuit.

May 13, 2009.

Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

MAX N. TOBIAS, JR., Judge.

The defendant/appellant, Randolph Robinson ("Robinson"), was charged by a grand jury indictment on 5 May 2005 with second degree murder, a violation of La. R.S. 14:30. 1. Robinson pleaded not guilty at his 10 May 2005 arraignment. The trial court denied his motion to suppress the identification on 11 April 2007 and his motion to suppress the evidence on 13 September 2007. Robinson was tried by a twelve-person jury on 23-24 January 2008 and found guilty as charged. On 15 February 2008, the trial court denied Robinson's motions for new trial and post-verdict judgment of acquittal. On that same date he waived all delays and was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Robinson filed a motion for appeal on 15 February 2008, on which date it was granted.

FACTS

Robinson was convicted of second degree murder for the 29 July 2004 shooting death of Tasha Smith ("Tasha"),¹ the victim.

Travis Smith ("Travis"), brother of the victim, testified that Tasha was born on 17 December 1982. He stated on cross examination that he was not at home on 29 July 2004, but had been there on Wednesday the 28 July 2004. On that date he did not hear any shots and did not look outside on the grounds for any cartridge casings of any kind.

Mary Rounds ("Rounds") testified that in July 2004 she was employed by the United States Postal Service. She stated that Cambronne Street in New Orleans was part of her route and she was working on 29 July 2004. She confirmed that the address of 2514 Cambronne Street was a home to which she regularly delivered mail. Rounds did not remember anybody being on the front porch of 2514 Cambronne Street when she delivered mail there on 29 July 2004. When Rounds left 2514 Cambronne Street she encountered the victim Tasha. They talked for perhaps ten minutes. They discussed hair. Rounds also told Tasha she was not allowed to give her postal-issued defensive pepper spray (intended to deter dogs) to anyone. After the conversation Tasha went home. Rounds told her before she left that she was going to come down and talk to her some more. Rounds walked off, with her back toward Tasha. Rounds' sister telephoned her on her cell phone. Seconds later Rounds heard Tasha scream, and she turned around to see a man standing over Tasha shooting, although she said she could not see Tasha. Rounds could see a gun; she stated that she knew nothing about guns and could not say whether the gun was a revolver or a semi-automatic. She was certain she heard five shots because she recalled thinking to herself that there was one bullet remaining, and that she'd better get out of there. She ran and returned to the post office. She said she also went to the doctor that day because the events had been a lot for her to deal with, and because she had hit her knee getting into the postal vehicle.

During direct examination of Rounds the prosecutor walked away from the witness, telling her to say "stop" when the prosecutor reached the point at the distance Rounds was from the person who shot Tasha. The prosecutor noted for the record that the distance was approximately 30 feet. On 9 August 2004, Rounds selected Robinson's photograph from a photographic lineup, writing "Tentative" on the back of it. She explained that she had not been "100 percent sure" of her identification of Robinson. She said that what she observed that day probably lasted "not a minute." She said it was in the morning and that it had been a bright day. Rounds stated she thought she had seen the shooter once before.

Rounds testified on cross examination that she did not remember how sure she was of her identification of Robinson in the photographic lineup, in terms of percentage, but had seen Robinson before at a different home on Tasha's block of Cambronne Street, perhaps a couple of weeks or a month before. Rounds replied in the affirmative when asked if she was prepared to say that she could not make a positive identification. She could not deny that she told police she was 70% to 80% percent certain. Rounds then replied in the affirmative when defense counsel asked if she was in fact 70% to 80% certain that Robinson was the shooter. She denied that she told the officer that showed her the photographic line up that all the photos in the lineup looked similar. Rounds confirmed that she was so distraught that she had to be transferred out of the area, and she conceded that that was the condition in which she tentatively identified defendant. She said that after the shooting the assailant ran towards the left, as one faced the house at 2514 Cambronne Street.

Tony Smith ("Tony") testified that he was the victim's twin brother. He testified that at the time of the shooting he was asleep inside of the shotgun double residence at 2514 Cambronne Street that he shared with his brother and Tasha. He was awakened by what he recalled was four or five shots. He opened the front door to see Tasha lying on the front porch. To open the iron security gate he had to push her body aside a little to squeeze out. He then turned her over. She was unresponsive. Tasha had a purse on her shoulder and a plastic bag from a store with her. She was carrying Hawaiian Punch and had a key in one of her hands. Tony testified that quite a few cars were present on the block that day, and a bicycle was in the alleyway next to his house. He admitted to four prior marijuana convictions: one for first offense possession, two for second offense possession, and one for third offense possession. Tony said he had seen Robinson at their home at 2514 Cambronne Street in the company of Tasha on more than one occasion. The last time was in the month of July. He provided police with Robinson's name and address. Tony testified that Zay White ("Zay") (actual name, Zaairvert White) lived three doors down from him. Zay was not outside when Tony first came outside.

On cross examination Tony stated that it took him about 30 seconds to get to the front door after being awakened by the gunshots. He admitted that he had "three felonies."

New Orleans Police Department ("NOPD") Homicide Detective Erbin Bush investigated the homicide in question. The victim was pronounced dead at the scene, 2514 Cambronne Street. He said the victim's positioning on the porch and the evidence surrounding her suggested that she was likely either just arriving home or departing at the time she was killed. Detective Bush recovered a bicycle, but never determined to whom it belonged. Eight spent cartridge casings and twelve bullet fragments were collected at the crime scene and placed into evidence. A black backpack was recovered that had personal belongings in it and a state of Louisiana protective order. Detective Bush interviewed ten-year-old Zay at the NOPD Second Police District station. He presented the youth with a photographic lineup. Zay viewed the lineup for several seconds before selecting a photo. Detective Bush said Zay seemed 100% confident in his choice. The detective also presented Zay's mother with a photographic lineup, but she could not identify anyone. Detective Bush presented Rounds with the photographic lineup, and she selected one of those depicted.

Detective Bush testified that once he got an identification on the suspect he prepared and had signed arrest and search warrants, respectively, for Robinson and Robinson's residence. The search warrant was executed. However, Robinson was not at the residence to be arrested. Detective Bush went to Robinson's residence on a few occasions and spoke to his mother on several other occasions. Robinson was eventually located in the state of Minnesota.

Detective Bush confirmed that he did not know whether or not Tasha had on a backpack or anything at the time she was shot. He said he believed Zay lived to the left of the Smith residence, but was not certain. He confirmed that the eight spent casings found at the scene meant that at least eight shots were fired at some time from somewhere. Detective Bush believed Detective Hilal Rohli talked to Zay and his mother at the scene. He said Rounds was 70% to 80% certain of the photograph she selected. He instructed her to write "Tentative" on the back of the lineup. Rounds did not give him a physical description of the shooter. But someone else he interviewed gave a physical description.

Zay was fourteen years old at the time of trial. He testified that on 29 July 2004 he was living at 2508 Cambronne Street. Tasha was his next door neighbor. He said Tasha was shot down by Robinson. Zay had seen Robinson twice before the day he saw him shoot Tasha. Zay said he heard nine shots. He said the gun used by Robinson was a nine-millimeter that he thought was chrome plated. Zay said the weather on the day Tasha was shot was sunny, and he said he got a pretty good look at the person who shot her. The shooter had nothing covering his face. Zay met with Detective Bush at a police station the same night Tasha was shot, where he was shown a photographic lineup. He said he picked someone out, and was positive of his identification. Zay was shown a photographic lineup with his signature on the back, and an indication that he selected photo number one as the person he saw shoot Tasha. Zay pointed out Robinson in court as that person. Zay said he lived to the left of Tasha's house. He said he had seen Robinson the day before the shooting at a store on the corner of Apple and Leonidas Streets.

Zay...