92-1491 La.App. 4 Cir. 4/14/94, State v. Carr

• Decision Date: 14 April 1994
• Citation: 635 So.2d 1334
• Parties: 92-1491 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1334

635 So.2d 1334

92-1491 La.App. 4 Cir. 4/14/94

STATE of Louisiana v. Wayne M. CARR and Anthony Celius.

No. 92-KA-1491.

Court of Appeal of Louisiana Fourth Circuit.

April 14, 1994.

Michael H. Ellis, Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, for defendants/appellants.

Harry F. Connick, Dist. Atty. of Orleans Parish, Jack Peebles, Asst. Dist. Atty., New Orleans, for plaintiff/appellee.

Before JONES, WALTZER and LANDRIEU, JJ.

[92-1491 La.App. 4 Cir. 1] WALTZER, Judge.

STATEMENT OF THE CASE

The defendant-appellants, Anthony Celius (Celius) and Wayne Carr (Carr), were charged by bill of information with three counts of armed robbery, violations of LSA-R.S. 14:64. The defendants entered pleas of not guilty on June 26, 1987. Count one was severed from counts two and three, and trial was held on the last two counts on September 7, 1988. A twelve-member jury found both defendants guilty as charged on both counts. On October 19, 1988, Carr was sentenced to serve twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on each count to run concurrently. On October 24, 1988, Celius was found to be a second offender under a multiple bill filed by the State. On February 21, 1989, the trial court specified that Celius was a second offender on count two only. The court then sentenced him on count two to thirty-three years at hard labor and on count three to twenty-five years at hard labor. On January 17, 1991, the trial court amended the minute entry of February 21, 1989, to reflect that the sentences imposed upon Celius were to be served without the benefit of probation, parole, or suspension of sentence.

Both defendants took out-of-time appeals from their convictions and sentences. Those appeals were limited to a review of the record for errors patent. This Court affirmed. State v. Celius and Carr, unpub. (89-KA-1307, La.App. 4th Cir. May 15, 1990). On February 18, 1992, the trial court reinstated the appeal based on an application for post [92-1491 La.App. 4 Cir. 2] conviction relief alleging the constructive denial of the assistance of counsel on appeal. ¹ The record was lodged in this Court on July 2, 1992; however, it reflected that the same counsel who filed the brief originally was still counsel of record. This Court subsequently ordered that counsel other than OIDP be appointed to represent the defendants.

Celius contends that the trial court incorrectly amended Celius' original sentence to prohibit parole, probation or suspension of sentence; further, Celius was absent and unrepresented at the time of this amendment. Celius assigns as error that he was identified pursuant to an impermissibly suggestive identification procedure. Carr contends that the jury in his case was improperly charged as to the definition of reasonable doubt.

We find no error in the convictions of Carr and Celius and affirm. The sentences imposed on Carr are likewise affirmed. The sentences imposed on Celius are vacated because the record does not demonstrate that his original sentences were amended pursuant to evaluations required by the Louisiana Supreme Court in State v. Husband, 593 So.2d 1257 (La.1992), rehearing denied 594 So.2d 1305 (La.1992) and State v. Desdunes, 579 So.2d 452 (La.1991).

STATEMENT OF THE FACTS

On April 27, 1987 at approximately 6:40 p.m., two men, later identified as Carr and Celius, walked toward Connie Corll, Barry Howell and Chris Ritthaler in the 100 block of Orleans Avenue. As the two men passed, Celius grabbed Howell by the arm, put a gun to his back and said, "Give me your wallet." Carr grabbed Ritthaler. Howell handed his wallet to Celius, and Ritthaler handed his watch and wallet to Carr.

Corll watched the robbery of Howell and ran into a nearby bar where she yelled for the bartender to call the police. After the bartender called the police, Corll exited the bar, [92-1491 La.App. 4 Cir. 3] saw a crowd gathered at the location of the robbery, and saw the perpetrators running away. Howell and Ritthaler began chasing the suspects, and both men and Corll saw the perpetrators enter a black van and drive off. A police car arrived only minutes later but a search of the area for the van and robbers was unsuccessful.

On April 30, 1987, at approximately 11:55 p.m., Joseph Bennett was walking in the 1000 block of Dumaine Street when he was approached by three men, two of whom were Carr and Celius. The perpetrators took Bennett's wallet and a D.H. Holmes bag containing a wig. The three men fled on foot. Bennett went to a nearby phone and called the police.

Officers Randy Varuso and Ray Vickers were travelling on Rampart Street near Dumaine on April 30, 1987, when they saw three men running quickly. The officers became suspicious and saw the three men enter a black van and drive off. The officers then followed the van and saw a wallet thrown from the passenger side of the van. The officers radioed for assistance, and another police car helped in the chase. The van was stopped in the 1200 block of St. Louis Street. Officer Bruce Little, who had assisted in the chase, saw a gun drop from the passenger side of the van. Carr was the driver of the van; Celius, James Mitchell and three other people were present in the van. The armed robbery victim Bennett was taken to the scene where the van had been stopped. At that time he identified Carr, Celius and Mitchell as the persons who robbed him. The police recovered property belonging to Bennett from the van; they also located the victim's D.H. Holmes bag on a nearby street.

On May 5, 1985, a physical line-up was conducted of Carr and Celius. Corll, Howell and Ritthaler participated in this line-up. All three identified the defendants as the men who perpetrated the armed robbery of Howell and Ritthaler. They identified Celius as the robber who held the gun.

ERRORS PATENT

Counsel for appellants requested only a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 [92-1491 La.App. 4 Cir. 4] So.2d 528 (La.App. 4th Cir.1990). Counsel's detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record.

Counsel moved to withdraw because after a conscientious review of the record, he believes that there are no non-frivolous issues to be raised on appeal. Counsel reviewed all available transcripts and found no trial court rulings which arguably support the appeal. A copy of the brief was forwarded to the appellants, and this Court informed each defendant that he had the right to file a brief on his own behalf. Celius has done so, raising three assignments of error.

Wayne Carr has not filed a pro se brief. However, he indicated that he would do so, and this Court forwarded a complete copy of the appellate record for his use. That record has been returned. Carr filed a motion for enforcement alleging that he has not been furnished a copy of the jury instruction transcript.

The judge charged the jury concerning the definition of reasonable doubt:

"A reasonable doubt is not a mere possible doubt. It should be an actual or substantial doubt, such a doubt as a reasonable person would seriously entertain. It is a serious doubt for which you could give a good reason."

In Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), the United States Supreme Court held:

"[The charge] equated a reasonable doubt with a 'grave uncertainty' and an 'actual substantial doubt,' and stated that what was required was a 'moral certainty' that the defendant was guilty. It is plain to us that the words 'substantial' and 'grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to 'moral certainty,' rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause." 498 U.S. at 41, 111 S.Ct. at 329-330.

In the instant case, the trial judge used the term "actual or substantial doubt," and a "serious doubt" but did not add the "grave uncertainty" and "moral certainty" language found objectionable in Cage. In State v. Harris, 624 So.2d 443, 448 (La.App. 4th Cir.1993), this Court held that a jury charge containing the language "grave uncertainty" without the reference to "moral certainty" created only harmless error. In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the [92-1491 La.App. 4 Cir. 5] United States Supreme Court upheld a reasonable doubt charge referring both to "an abiding conviction to a moral certainty of the guilt of the accused" and to reasonable doubt as "an actual and substantial doubt arising from the evidence." The Supreme Court did not find the charge taken as a whole to be constitutionally defective, and distinguished the case from its earlier holding in Cage:

"Any ambiguity, however, is removed by reading the phrase in the context of the sentence in which it appears: 'A reasonable doubt is an actual and substantial doubt ... as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.' ... This explicit distinction between a substantial doubt and a fanciful conjecture was not present in the Cage instruction.... [W]e did not hold that the reference to substantial doubt alone was sufficient to render the instruction unconstitutional.... Rather, we were concerned that the jury would interpret the term 'substantial doubt' in parallel with the preceding reference to 'grave uncertainty,' leading to an overstatement of the doubt necessary to acquit." 511 U.S. at ----, 114 S.Ct. at 1250.

The Supreme Court found the...