93-1432 La.App. 4 Cir. 4/17/96, State v. Green

• Decision Date: 17 April 1996
• Citation: 673 So.2d 262
• Parties: 93-1432 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 262

673 So.2d 262

93-1432 La.App. 4 Cir. 4/17/96

STATE of Louisiana v. Joseph GREEN.

No. 93-KA-1432.

Court of Appeal of Louisiana, Fourth Circuit.

April 17, 1996.

Harry F. Connick, District Attorney of Orleans Parish, Theresa A. Tamburo, Assistant District Attorney of Orleans Parish, New Orleans, for State of Louisiana.

M. Craig Colwart, New Iberia, for Defendant.

SCHOTT, C.J., and PLOTKIN and WALTZER, JJ.

[93-1432 La.App. 4 Cir. 1] PLOTKIN, Judge.

The primary issues to be resolved in this appeal relate to defendant's sentences. Of considerable importance is whether an illegal sentence can be reviewed as an error patent or must be preserved for review by a motion to reconsider the sentence.

On November 27, 1991, Joseph A. Green was charged by bill of information with the July 9, 1991 armed robbery and attempted second degree murder of Roy Franklin Ham in violation of La.R.S. 14:64, 14:27(30.1). He pleaded not guilty at arraignment on December 9, 1991. On January 19, 1993, a twelve-member jury found him guilty of armed robbery and attempted manslaughter. On April 23, 1993, he was sentenced to serve fifty years at hard labor without benefit of parole, probation, or suspension of sentence as a second offender under La.R.S. 15:529.1 for armed robbery and concurrently to serve ten and one-half years at hard labor without benefit of parole, probation, or suspension of sentence for attempted manslaughter. Green appeals his conviction and sentence.

At the two-day trial, Roy Franklin Ham, a Naval aviator instructional mechanic, testified that on July 9, 1991 at approximately 11 p.m. he left work at the air station in Belle Chase. On the way home, Ham stopped at a Texaco gas station on General DeGaulle. He pumped his gas and paid the cashier by credit card. As he returned to his car he saw a man crouching by his rear left tire. This man asked him for spare change and Ham replied that he only had enough for toll. Ham walked around the man and entered his car (tossing his wallet onto the [93-1432 La.App. 4 Cir. 2] floorboard). As Ham closed the car door, the man approached the driver's window, put a gun in Ham's face, and demanded money. The man became angry and loudly demanded more money after Ham gave him his only dollar. Ham became frightened and grabbed the gun by the barrel with his left hand while starting the car with his right hand and shouting for help. The man pulled the gun from him, stepped backwards, and shot him in the face. Ham crawled out of his car and toward the gas station. The cashier helped him inside and called the police. Ham identified photographs of his car. Ham testified that he identified Green as the man who shot him from photographic and physical line-ups. As a result of the shooting Ham is permanently blind in his left eye. Ham's wallet has been missing since the shooting. Ham identified Green in court.

Officer Shelita Butler testified that she was dispatched to a Texaco station at 3054 General DeGaulle. When she arrived she found the victim lying in front of the cashier station in a pool of blood. The EMS unit arrived at the same time and began treating the victim while Officer Butler and her partner canvassed the area for witnesses. She briefly questioned the victim, who appeared delirious, while accompanying him to the hospital in an ambulance. The victim told her that a black male who had approached him for money shot him the face. Officer Butler interviewed Mary St. Clair, the cashier, whose account of the shooting was consistent with the victim's.

Mary St. Clair testified that she worked as cashier at the Texaco on General DeGaulle on July 9, 1991. She drew the station layout on a blackboard for the jury. St. Clair testified that after Ham paid for his gas with an American Express card and returned to his car she saw a black male leaning over into his car whom she assumed was a panhandler. St. Clair had taken care of the next customer and exited the station to tell the panhandler to get off the lot when she heard a gunshot. She ducked down and pulled another customer by the arm into the station. St. Clair was returning for this customer's children when Ham, who was bleeding from below his eye, exited his car and stumbled toward the station. She took Ham by the arm, pulled him into the station, locked the doors, and dialed 911, while blood streamed from Ham's face. St. Clair identified photographs of Ham's car and the crime scene.

Detective Robert Heindel testified that he performed a follow-up investigation of the scene of the shooting. He learned there were three declined charges on Ham's stolen credit [93-1432 La.App. 4 Cir. 3] card. One charge was declined at a Howard Johnson Hotel. Detective Heindel identified a guest registration card signed by "R. Franklin" that was refused in connection with this denied charge. He obtained a description of two black males who had tried to obtain a room at the Howard Johnson. He learned that Ham's credit card was used the morning after the robbery to purchase two twelve-packs of beer and a carton of cigarettes at a Time Saver from a clerk who became suspicious and wrote down a license plate number. He learned from the Sentry Motel that a man, who signed his name "R. Franklin" on the guest registration card, had charged two rooms in the early morning after the robbery. Detective Heindel found the rooms empty and obtained a log of telephone calls made from the rooms. Detective Heindel identified the guest registration card from the Sentry Motel, a credit card receipt for the room, and the list of numbers called from the rooms. Detective Heindel testified that one number, which was frequently called, was registered to Troy Green Ware. Detective Heindel found the car described by the Time Saver clerk outside Ware's apartment. He took Ware into custody; ruled out Ware as a suspect in the robbery; conducted photographic line-ups in which Ham, the clerk from the Time Saver, and the clerk from the Sentry Motel all identified Green; and conducted a physical line-up in which Green was identified by Ham. Detective Heindel identified Green in court.

Joseph Sciarrini testified that he was employed at the Time Saver on General Meyer on July 10, 1991. Sciarrini became suspicious of a customer who purchased beer and cigarettes so he exited the store to observe the customer's car as it drove away and copied down the license number. Sciarrini testified that he identified Green from a photographic line-up as the customer. Ware was brought into the courtroom and Sciarrini said that Ware was not the person he identified.

It was stipulated that Dr. James S. Kadi, a head and neck surgery resident at Charity Hospital, was an expert in the field of diagnosing and treating head and neck injuries. Dr. Kadi testified that he treated Ham, who had been shot in the face below his left eye, at Charity Hospital on July 9, 1991. Ham was lucid and told Dr. Kadi that he had been shot in his car at a service station after someone placed a gun to his head and demanded money. Dr. Kadi found the obvious entrance wound, determined that there was no exit wound, and acted to control the bleeding. He performed surgery on the victim after X-rays were taken to locate the bullet. Dr. [93-1432 La.App. 4 Cir. 4] Kadi identified photographs taken during surgery. Dr. Kadi described the path taken and the damage caused by the bullet. According to Dr. Kadi, Ham nearly bled to death, would not have survived without surgery, and permanently lost his vision in his left eye. The skin was seared near the entrance wound indicating that the bullet had been fired from very close range. Dr. Kadi identified his notes and the medical records.

Detective Craig Rodrigue testified that he participated in Green's arrest. In response to Crime Stoppers information he found Green hiding in the bedroom closet of Green's stepmother's apartment. Green's stepmother appeared nervous and evasive but consented to the search of her apartment. Detective Rodrigue identified Green in court.

Bobby Pruitt was working at the Sentry Motel on July 10, 1991. Pruitt testified that a person he later identified from a photographic line-up as Green checked into the hotel for a week on that date with an American Express card. Pruitt learned the card was stolen when he attempted to charge another week to the card. Pruitt identified Green in court.

Troy Green Ware, Green's stepbrother, testified that the police came to his house, told him he was a robbery suspect, and forced him (by threatening him with being charged in the robbery or with probation violation and by force) to sign a statement implicating Green after advising him of his rights. Ware said that the police took from him a nine millimeter handgun, .22 caliber bullets, and sheets he had taken from the Sentry Motel. Ware told the police he had driven Green to a Time Saver and to the Sentry Motel. Ware testified alternatively that the statement he made to the police was true, partially true, entirely false, and he said that he would have signed a false statement to avoid trouble. When shown the statement, Ware first identified his signature and then said that it wasn't his because he had signed some other document. Ware did not want to testify, did not want Green to go to jail, and was frightened and confused.

Edna Russo, Green's grandmother, testified that Green lived with her. She said Green was home when she arrived at approximately 8:45 p.m. on July 9, 1991. Green was watching videotaped soap operas when she went to sleep at approximately 11:30 p.m. that night. She said that Green could not have left because her doors were still locked the next morning and only she and her son Glen have keys to her house. According to Russo, Green does not own a car. She did not know Ware.

Detective Robert Haydel testified that Ware had been a suspect in the robbery. Detective [93-1432 La.App. 4 Cir. 5] Haydel advised Ware of his rights and Ware indicated that he...