State Of La. v. Preston

• Decision Date: 25 May 2010
• Docket Number: No. 09-KA-856.,09-KA-856.
• Citation: 40 So.3d 1052
• Parties: STATE of Louisianav.George A. PRESTON.
• Court: Court of Appeal of Louisiana — District of US

40 So.3d 1052

STATE of Louisianav.George A. PRESTON.

No. 09-KA-856.

Court of Appeal of Louisiana Fifth Circuit.

May 25, 2010.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

George Preston, Cottonport, LA, Defendant/Appellant in Proper Person.

Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

FREDERICKA HOMBERG WICKER, Judge.

In this criminal matter, George A. Preston appeals his armed robbery conviction, a violation of La.R.S. 14:64, and his 20-year hard labor sentence without statutory benefits. Mr. Preston assigns the following counseled and pro se errors: (1) The evidence at trial was insufficient upon which to conclude beyond a reasonable doubt that the perpetrator was armed with a dangerous weapon. (2) The trial judge erred by incorrectly instructing the jury as to two non-responsive verdicts, thereby misleading the jury. (3) Trial counsels were ineffective for failing to object to the erroneous instructions and verdict sheet. (4) Trial counsels were ineffective for failing to file a timely motion for new trial on the basis of the erroneous instructions and verdict sheet. Finding no merit to the assignments, we affirm the conviction and sentence. Furthermore, we have reviewed the record for errors patent and find none.¹

The defendant was charged by a two-count bill of information. Count 1 charged him with violating “R.S. 14:64 in that he did rob Dennis Moreau while armed with a dangerous weapon, to wit: a handgun” allegedly occurring on September 14, 2006. Count 2 charged him with violating La.R.S. 14:62, simple burglary, allegedly occurring on October 1, 2006. The defendant was represented by counsels Mark Morgan and Jake Lemmon. A few weeks before trial, following a bench conference, the state severed the charges and informed the court that it would first proceed to trial with Count 1.² On August 14, 2008, after a two-day trial, the jury found the defendant guilty of armed robbery. About a month later, the trial judge conducted a sentencing hearing. He sentenced the defendant to 20 years at hard labor without the benefit of parole, probation, or suspension of sentence. The trial judge ordered the sentence to run consecutively with any other sentences that the defendant might be serving.³ The defendant now appeals.

Facts

On September 14, 2006, Dennis Moreau, the general manager of the McDonald's Restaurant located at 2126 Airline Dr. in Kenner, Louisiana, made a 911 call ⁴ to the Kenner police reporting that he was robbed of the restaurant's bank deposit at gunpoint. The Kenner 911 call station received the call at 3:54 PM. Mr. Moreau said that the perpetrator pulled a gun on him, took the deposit (which was in a McDonald's bag),⁵ and ran down the street after the robbery. Stating that he was unfamiliar with guns, he described the weapon as a chrome-colored gun, “kind of small,” “like maybe a 9mm.” He said that before the robbery, he saw the perpetrator in the restaurant speaking to one of Mr. Moreau's employees. And, he would recognize the perpetrator if he saw him again. He gave a description to the operator. Mr. Moreau testified at trial that he was “really frantic” at the time and the description he gave then might not be “perfect.” He testified that he could not vouch for the accuracy of the police report's statement of the description he gave to the police. However, he was one hundred percent certain of his testimony in court regarding his identification of the defendant as the robber.

Detective Brian McGregor, a 14-year veteran of the Kenner Police Department, testified that he was an investigator for the department at the time of the incident. He responded within 10 to 15 minutes to the dispatched radio call. The call alerted to an armed robbery involving a gun at the restaurant. Several officers were at the scene when he arrived. Detective McGregor spoke with Mr. Moreau. Detective McGregor related Mr. Moreau's account of the incident, which was similar to Mr. Moreau's description at trial.

Mr. Moreau testified that on the day of the robbery, he worked a 7:00 AM to 4:00 PM shift. Around 1:00 PM, he noticed the defendant speaking to two employees. Mr. Moreau returned to his office and then walked around the restaurant to make certain there was no problem. He spotted the defendant walking with an employee to the bathroom. He thought they were “goofing off” so he followed them. His employee returned to work as instructed and the defendant sat at a table. A few minutes later, a disturbance occurred. The defendant was talking loudly to the employees and yelling. Around 2:30 PM or 2:45 PM, Mr Moreau told the defendant to order food or leave the restaurant. The defendant made “smart comments” under his breath and walked out of the restaurant.

Mr. Moreau went to his office. Among other things, he counted money and prepared bank deposits. Shortly before 4:00 PM, about 3:45 PM, Mr. Moreau walked out the service and employee door-the back door-to his car that was parked in the back parking lot. That door could only be opened from the inside. Mr. Moreau recalled the events that followed “perfectly.” He stated that he unlocked his car door, sat inside, and closed the door. He delayed starting the car while retrieving change from his pocket. A few seconds later, the defendant opened the car door. Mr. Moreau recalled that he had asked the defendant to leave the restaurant. Hence, when the defendant first opened the door, Mr. Moreau thought it was a “joke.” Mr. Moreau focused on the defendant's face and did not see a gun at first. He was puzzled by the defendant's actions. He thought the defendant was angry at Mr. Moreau for “kicking him out of the restaurant.” The defendant yelled at Mr. Moreau and then Mr. Moreau saw the gun. At the time he saw the gun, the defendant told Mr. Moreau to give him the money. Mr. Moreau felt “paralyzed” at being held up at gunpoint. He gave the defendant the money that was in a McDonald's bag and the defendant ran down the street with the bag.⁶ Mr. Moreau ran into the restaurant and called the police. The amount of money that was taken totaled $3700 to $4000 for two deposits.

At trial, Mr. Morrow described the gun as a small kind of silver handgun. When the prosecutor asked if there was any possible mistake that the thing that was in the defendant's hand was a gun, he replied “absolutely not.”

Mr. Moreau testified that he knew the person who had robbed him because he had seen the perpetrator earlier in the restaurant that day and the perpetrator did not wear a mask. He had absolutely no doubt that the defendant was the person who robbed him. Mr. Moreau testified that the defendant had a tattoo on his “eye” that was very easily seen.⁷

Mr. Moreau stated: “I will never forget his face and I knew at that instant that he put that gun in my face, when he opened the car door I knew exactly who he was the second it happened and there is no question in my mind, it is one hundred percent.” He identified the defendant in court as the person who robbed him that day. Mr. Moreau testified that he did not see anyone other than the defendant in the parking lot at the time he was robbed, nor was there anyone running with the defendant when he fled the scene after the robbery.

Sergeant Marc Ortiz, a 16-year veteran with the Kenner Police Department, arrived at the scene shortly after the robbery. Sergeant Ortiz, an expert in the field of computer forensic and data recovery, testified that in September 2006, he was the department's computer forensics examiner. He retrieved digital video surveillance footage from the restaurant's surveillance equipment. Mr. Moreau indicated the pertinent time frame. There was no video surveillance of the robbery outside the restaurant. Sergeant Ortiz copied scenes of an individual who was inside the business prior to the robbery. The state introduced those digital video scenes. That digital video was displayed to the jury.

Sergeant Ortiz pointed out Mr. Moreau, an employee, and the perpetrator-later identified as the defendant. Sergeant Ortiz explained that Mr. Moreau identified those parties. Still shots of the defendant were also taken from this video and introduced into evidence.

Detective McGregor testified that he later developed a suspect. On October 12, 2006, he compiled a six-person photographic lineup including the suspect and other individuals with similar characteristics. Detective McGregor stated that he did not present the lineup to Mr. Moreau in a suggestive manner. He noted that a computer technique removed the tattoo on the defendant's face so that all photographs had no tattoo. Detective McGregor and Mr. Moreau testified that Mr. Moreau identified the defendant.

Thereafter, Detective McGregor obtained an arrest warrant. The police department placed details of the robbery along with the defendant's picture and the fact that he was wanted for the offense of armed robbery in the Times Picayune newspaper.

Detective McGregor stated that Orleans Parish police arrested the defendant as a fugitive at the Greyhound bus station in New Orleans as he attempted to flee to Atlanta, Georgia. At the time of his arrest the police seized two bandannas and the newspaper article that were in the defendant's possession. Detective McGregor interviewed the defendant after the defendant was transported to Kenner.

Detective McGregor testified that after being advised of his rights and waiving them, the defendant admitted that he was the individual depicted in the surveillance photographs. He also admitted that he was asked to leave the restaurant after being involved in a verbal altercation with the manager. However, the defendant denied robbing the manager and having a gun in his possession. The defendant...