State v. Roe
| Decision Date | 08 October 2014 |
| Docket Number | No. 2013–KA–1434.,2013–KA–1434. |
| Citation | 151 So.3d 838 |
| Parties | STATE of Louisiana v. Jason M. ROE, Joshua A. Watson. |
| Court | Court of Appeal of Louisiana — District of US |
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant, Jason M. Roe.
Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Joshua A. Watson.
(Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU ).
The defendants, Jason M. Roe (“Roe”) and Joshua A. Watson (“Watson”) appeal their convictions for armed robbery with a firearm (Count 1). Roe alone appeals his conviction for armed robbery with a firearm (Count 2); possession of a firearm by a convicted felon (Count 3); and illegal possession of a stolen firearm (Count 4).
Finding no merit to any of Roe's or Watson's assignments of error as to their convictions on Count 1, but finding an error patent as to the sentence imposed on each of them for their convictions on this count, the convictions on Count 1 are affirmed, but their sentences as to this count only are vacated, and the case IS remanded for resentencing pursuant to La. R.S. 14:64 and La. R.S. 64.3 A. Finding no merit to any of Roe's assignments of error as to Counts 3 and 4, but finding an error patent as to Count 3 only, Roe's convictions and sentences as to those two counts are affirmed, but the case is remanded to trial court for the imposition of the mandatory fine for Count 3 only as provided for by La. R.S. 14:95.1 B. Finding that the evidence is insufficient to sustain Roe's conviction as to Count 2, his conviction and sentence as to Count 2 are reversed.
Roe and Watson were jointly charged by bill of information on 19 July 2011: in Count 1 they were charged with armed robbery while armed with a firearm, violations of La. R.S. 14:64 and R.S. 14:64.3. Roe alone was charged: in Count 2 with armed robbery while armed with a firearm, violations of La. R.S. 14:64 and R.S. 14:64.3 ; in Count 3 with possession of a firearm, having been previously convicted of a felony, a violation of La. R.S. 14:95.1 ; and in Count 4 with illegal possession of a stolen firearm, a violation of La. R.S. 14:69.1.
Both defendants entered pleas of not guilty to all charges at their 25 July 2011 arraignment. The trial court denied their motion to sever the offenses. A twelve-person jury found Roe guilty on all four counts and Watson guilty on Count 1.1 The trial court denied the defendants' respective motions for new trial and for post-verdict judgment of acquittal, and on that same date sentenced Roe as to: Counts 1 and 2, seventy years at hard labor on each; Count 3, fifteen years at hard labor; and Count 4, five years at hard labor. The trial court stipulated that all sentences were to be served without benefit of parole, probation, or suspension of sentence, and to run concurrently. The trial court sentenced Watson as to Count 1 to fifty years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court denied on that day motions filed by both defendants to reconsider their respective sentences. These timely appeals followed.
Roe and Watson were convicted of the 17 January 2011 armed robbery of Jonathan Henley (“Henley”). Roe was also convicted of the 8 March 2011 possession of a stolen firearm belonging to Henley and the possession of that firearm, having been previously convicted of a felony. Roe also was convicted of the 21 January 2011 armed robbery of Troy Elzy (“Elzy”).
New Orleans Police Department (“NOPD”) 911 Operator Lynerell Varise identified a 911 incident recall from 17 January 2011, and a corresponding audio recording of that call, which was played for the jury. The 911 call came in at 6:45 p.m. Ms. Varise confirmed that the 911 caller declined medical assistance. She was not sure if the caller was injured, but noted that he did say he had a knot on the back of his head. The caller said he had drawers on, and that “they” got his clothes.
Jonathan Henley, then twenty-three years old, testified that on 15 January 2011, he encountered a male named “Yellow” at a Petro gas station on Elysian Fields Avenue in New Orleans. Later in his testimony, he identified Watson as “Yellow.” Henley testified that Watson alerted him that he had dropped some money on the ground. When he picked it up, Watson told him that he had some Xanax “bars” and some marijuana for sale. Henley saw Watson later that same day at a “Brothers” gas station on Elysian Fields Avenue, at which point he and Watson exchanged telephone numbers. Henley decided to purchase marijuana from Watson at that time. They talked on 17 January 2011, and they came to an agreement for Watson's sale to Henley of two ounces of marijuana for $900.00.
Later on the day of 17 January 2011, Henley drove his silver Chevrolet HHR rental car to a meeting with Watson in an alley alongside a Subway restaurant. Watson was in a green Chevrolet TrailBlazer automobile, which he exited to enter the passenger side of Henley's vehicle. Henley said he took out his money, and Watson showed him the marijuana. Henley was counting out his money when Watson pulled a semiautomatic pistol and told him to “give it up,” stating that it was a robbery. Henley gave Watson the money. Another male exited the other vehicle and tapped on Henley's driver's side window with a revolver, telling him to open the door. Henley later identified this individual as Roe. Roe ordered Henley out of his car and directed him to take his clothes off and throw them in the car. Henley complied, stripping down to his boxer shorts and undershirt and putting everything else in his car. Henley said Roe then hit him with the revolver.
When asked whether he gave Watson the money for the drugs or in response to the order to “give it up,” Henley replied that he did so in response to Watson's order to “give it up.” Henley replied in the negative when asked whether he and Watson ever completed the drug deal. His car was stolen in the robbery. The only name he knew at that time was “Yellow.”
Henley later met with NOPD Detective Duncan, who showed him what he estimated were six photo lineups, including State Exhibit 3, a single-photo of a female in connection with a “two-tone [Dodge] Charger.” Henley identified State Exhibit 4, a photo lineup with his handwriting on the back, in which he did not select anyone's photo. Henley confirmed that in State Exhibit 5, another photo lineup, he selected a photo as someone who looked similar to one of the two robbers. In State Exhibit 6, Henley identified his handwriting on the back and testified that he picked out photo number six, which he identified as a photograph of the second robber, who had been armed with a revolver. He identified that individual in court as Roe. Henley identified State Exhibit 7 as a photo lineup with his handwriting on the back and on which he identified photo number three as being “Yellow.” Henley identified “Yellow” in court as the other defendant present, Watson. Henley also identified State Exhibit 8 as a single photograph of Watson with a fleur-de-lis tattoo on his neck and wearing a dreadlock hairstyle. Henley said he still recognized them “[l]ike yesterday.”
Henley testified on cross examination that he saw Watson at a Brothers gas station on Elysian Fields Avenue, probably some four or five hours after he first saw him at the Petro gas station, which also was on Elysian Fields Avenue. He said it was nighttime and that he was not sure why he went to the Brothers station, mentioning that he could have been purchasing chicken or a T-shirt. He said he told Watson hello in a friendly gesture because in their first encounter Watson had told him about the dropped money at the Petro station. He was also interested in purchasing some marijuana from Watson, and so the two exchanged phone numbers. Henley admitted that he smoked marijuana every day at that time. Henley confirmed that he owned a gun he had purchased from a store; that gun was taken/stolen in the robbery.
Henley further testified that he made arrangements with Watson to meet him at a Capital One Bank on Elysian Fields Avenue for the marijuana purchase/sale. Henley said he did not remember whether he smoked marijuana on 17 January 2011. He was planning to go to a party in Baton Rouge later that evening after purchasing the marijuana from Watson. The party was to be at the home of his friend, for whom he was purchasing marijuana—one ounce for himself, one ounce for his Baton Rouge friend. The robbery occurred at what he estimated was between 6:00–7:00 p.m., but he was not really sure about the time. It was Roe who hit him in the back of his head. Henley testified that after the robbery, he called police from a washateria.
Henley admitted that he was shown the photo lineup labeled as State Exhibit 4 and confirmed that none of the photos depicted light-skinned individuals, but said he signed the back of photo number one because the detective had told him to indicate anyone who looked similar to a perpetrator. He said he thought that the person in photo number one looked similar to Roe, but not Watson. However, under further cross examination Henley confirmed that the individual depicted in photo number four in State Exhibit 4 did not look anything like either Roe or Watson.
Henley acknowledged that all of the individuals depicted in the photo lineup labeled as State Exhibit 5 were dark-skinned. He admitted that both State Exhibits 4 and 5 (photo lineups) were shown to him by the police on 30 January 2011, after he had given them a description of the two suspects. However, he later testified that he never gave a description until he went to talk to the detective, and he guessed 30 January 2011 was the first time he talked to the...
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