State v. Allen

• Decision Date: 18 September 2002
• Docket Number: No. 36,180-KA.,36,180-KA.
• Citation: 828 So.2d 622
• Parties: STATE of Louisiana, Appellee v. John Dale ALLEN, Appellant.
• Court: Court of Appeal of Louisiana — District of US

828 So.2d 622

STATE of Louisiana, Appellee v. John Dale ALLEN, Appellant.

No. 36,180-KA.

Court of Appeal of Louisiana, Second Circuit.

September 18, 2002.

Rehearing Denied October 17, 2002.

COPYRIGHT MATERIAL OMITTED

J. Wilson Rambo, Louisiana Appellate Project, Monroe, for Appellant.

Richard Leyoub, Attorney General, for Appellee.

William R. Jones, District Attorney, B. Kevin Holland, Assistant District Attorney.

Before BROWN, STEWART and GASKINS, JJ.

GASKINS, J.

Following a jury trial, the defendant, John Dale Allen, was convicted of armed robbery. Initially he was sentenced to the maximum sentence of 99 years at hard labor without benefit of parole, probation or suspension of sentence. Subsequently, the defendant was adjudicated a habitual offender and received a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He appeals. For the reasons set forth below, the defendant's conviction, adjudication as a habitual offender, and sentence are affirmed.

FACTS

In the early morning hours of July 5, 1999, the night clerk at the Kwik Pantry in Coushatta, Louisiana, was robbed by a masked man armed with a knife. When the robber entered the store, he jumped the counter, placed the knife to the clerk's throat, and demanded money. The clerk surrendered the money to him; it was later estimated to be between $800 and $900. Before fleeing, the robber ordered the clerk to lie on the floor and threatened to kill her if he saw her get up.

Law enforcement officers quickly developed 13-year-old C. S. as a suspect in the Kwik Pantry armed robbery. C. S. admitted to the police that he had committed the offense at the instigation of his cousin, the defendant. According to C. S., the defendant planned the robbery and recruited him to carry it out. The defendant outfitted him with the knife, mask, shirt, and some socks used in the robbery, producing most of the items from a duffel bag. En route to the Kwik Pantry, the defendant and C. S. stopped behind a motel where the defendant gave C. S. some powder to put on his face to make him look like "a white guy." Immediately prior to the robbery, the defendant gave the teenager the following instructions: "I want you to go up in there and jump over the counter and grab her and tell her to give you the money. And if she make any attempt to fight back, kill her."

After C. S. robbed the store, he ran back across the street to some bushes where the defendant was waiting for him. Then they both ran to a nearby church. The defendant counted the money. (However, unbeknownst to the defendant, C. S. had only given him part of the robbery proceeds.) C. S. returned the knife, shirt, socks and mask to the defendant. When the defendant asked C. S. if he killed the clerk, the boy lied and said yes. The defendant replied, "[G]ood job."

C. S. was picked up by police after a cousin mentioned to them that C. S. was spending a large amount of cash. After C. S. gave his statement to the police, officers went to the location he mentioned near the motel. There they corroborated part of C. S.'s statement, finding several items including a plastic bag containing white powder. Thereafter, a search warrant was secured for two adjoining houses on Abney Street: 1908 Abney, the home of an Allen cousin, and 1824 Abney, the home of John A. Allen, the defendant's uncle; the police had information that the defendant sometimes resided at both residences. In fact, the defendant was present when the police executed the search warrant at 1824 Abney. Upon seeing the officers enter the house, he immediately fled down a hallway to a nearby bedroom. Before being subdued, the defendant tried to reach under a bed; an officer later discovered a pellet rifle under the bed. The defendant was placed under arrest. During the search of 1824 Abney, a duffle bag was found between 30 to 60 feet from the house in the backyard in some bushes. Inside the duffle bag were the mask and shirt used in the armed robbery. However, the knife described by the store clerk was never recovered.

The defendant was charged with armed robbery. At trial, the store clerk testified that she could not identify the robber because he wore a mask. However, upon the state's presentation of a mask and a shirt, she identified the items as those worn by the person who robbed the Kwik Pantry. Law enforcement officers testified that these items were recovered from the duffel bag found behind the defendant's residence. C. S.—who had pled guilty to the armed robbery and been sentenced to incarceration until his 17th birthday—testified about his own participation in the armed robbery, as well as the defendant's role in masterminding the offense. The defense presented the testimony of John A. Allen, who is the defendant's uncle and C. S.'s great-uncle. He stated that the defendant did not live at his house. Rather, he testified, C. S. spent more time at his residence than the defendant. However, he admitted that the defendant came there often.

The defendant convicted was as charged and sentenced to the maximum penalty of 99 years at hard labor without benefit of parole, probation or suspension of sentence. The state filed a habitual offender bill, setting forth four prior felony convictions of the defendant: May 1984 forgery convictions (nine counts); October 1984 forgery convictions (four counts); 1992 first degree robbery conviction; and 1992 simple escape conviction. Subsequently, the state filed an amended bill which also listed a 1988 aggravated battery conviction. At a hearing in December 2000, the defendant was adjudicated a habitual offender. The trial court vacated the previous 99-year sentence and imposed a mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

In December 2001, the appellant filed an out-of-time motion to reconsider sentence; it was denied. At the same time, he also failed a motion for an out-of-time appeal which was granted. He asserted five assignments of error. Two assignments were not argued or briefed; consequently, they are deemed abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writs denied, 558 So.2d 1123 (La.1990); State e. Toney, 26,-711 (La.App.2d Cir.3/1/95), 651 So.2d 387.

SUFFICIENCY OF EVIDENCE

The defendant argues that there was insufficient evidence to support his conviction as a principal to armed robbery. In particular, he contends that the state's case was based solely upon circumstantial evidence and the inconsistent testimony of young C. S.

Law.

The standard of appellate review for a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State Bellamy. 599 So 2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992); La.C.Cr.P. art. 821.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Salton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d (Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State Bacon, 578 So.2d 175 (La.App. 1st Cir.1991), writ denied, 93-0694 (La.3/30/95), 651 So.2d 857; State v. Tolliver, 35,930 (La.App.2d Cir.(/8/02), 818 So.2d 310.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24.

Only those persons who knowingly participate in the planning or execution of a crime are principals. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, supra.

The state may prove a defendant guilty by showing that he served as a principal to the crime by aiding another. La. R.S. 14:24; State v. Smith, 513 So.2d 438 (La.App. 2d Cir.1987). Under this theory, the defendant need not actually take anything to be found guilty of the crime. Also, a defendant convicted as a principal need not have personally held a weapon to be guilty of...