State v. Brown

• Decision Date: 03 May 2017
• Docket Number: NO. 2016–KA–0965,2016–KA–0965
• Citation: State v. Brown, 219 So.3d 518 (La. App. 2017)
• Parties: STATE of Louisiana v. Jarvis BROWN
• Court: Court of Appeal of Louisiana

219 So.3d 518

STATE of Louisiana

v.Jarvis BROWN

NO. 2016–KA–0965

Court of Appeal of Louisiana, Fourth Circuit.

May 3, 2017

Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Donna Andrieu, Assistant District Attorney, J. Taylor Gray, Assistant District Attorney, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel J. Broussard, Pro Tempore)

Judge Rosemary Ledet

In this criminal appeal, the defendant, Jarvis Brown, seeks review of his convictions and sentences for armed robbery, possession of marijuana, and access device fraud.For the reasons that follow, we affirm his convictions, vacate his sentences on the armed robbery convictions only, and remand for resentencing.In all other respects, his sentences are affirmed.

STATEMENT OF THE CASE

On June 20, 2014, the State filed a bill of information charging Mr. Brown with the following:

• Three counts of armed robbery with a firearm, in violation of La.R.S. 14:64 and 14:64.3;

• One count of possession of marijuana, in violation of La.R.S. 14:34.2; and

• ne count of access device fraud, in violation of La.R.S. 14:70.4(E)(3).

On June 26, 2014, Mr. Brown was arraigned; he pled not guilty.On that same day, the district court appointed an attorney, Nandi Campbell, to represent Mr. Brown.

On August 21, 2014, Ms. Campbell requested a competency hearing.On September 11, 2014, a mental competency hearing was held.Accepting the doctors' recommendation, the district court found Mr. Brown competent to stand trial.At the conclusion of the hearing, Mr. Brown requested to represent himself.The district court granted Mr. Brown's request to represent himself with Ms. Campbell as his advisor.

On October 24, 2014, Mr. Brown appeared for a hearing on his motions to suppress evidence, statement, and identification, which were previously filed by Ms. Campbell.At the hearing, Mr. Brown informed the district court that he did not want Ms. Campbell as his advisor.At the conclusion of the hearing, the district court denied Mr. Brown's motions to suppress evidence, statement, and identification.

On November 10, 2014, the district court granted Ms. Campbell's motion to withdraw as counsel of record.Subsequently, Sierra Thompson, an attorney with the Orleans Public Defender, was appointed as his advisor.

On November 5, 2015, a second mental competency hearing was held.Accepting the doctors' recommendation, the district court found Mr. Brown competent to stand trial.

On March 21 and 22, 2016, a jury trial was held on the three counts of armed robbery and a bench trial was held on the misdemeanor charges—possession of marijuana and the access device fraud.Mr. Brown was found guilty as charged on all the offenses.The district court sentenced Mr. Brown to sixty years at hard labor without benefit of parole, probation, and suspension of sentence on each count of armed robbery to be served concurrently with all other sentences.The district court also sentenced Mr. Brown to six months on each misdemeanor conviction to be served concurrently with all other sentences.¹The district court denied Mr. Brown's Motions for New Trial and to Reconsider Sentence.This appeal followed.

STATEMENT OF THE FACTS

On April 23, 2014, between 3:30 and 4:00 p.m., three victims—Michael Retif, Linda Hammerstein, and Kristina Fortier—were robbed at gunpoint in the Lakeview area of New Orleans.For ease of discussion, we divide our analysis of the facts into the following two sections: the robberies and the investigation.

The Robberies

The victim of the first robbery, Mr. Retif, was renovating a house on the corner of Harrison Avenue and Duplessis Street.While working on the house, he noticed a green truck driving in circles around the block.Later that day, around 3:30 p.m., Mr. Retif was on a ladder scraping windows when he felt a tug on his pants pocket.When he turned around, Mr. Retif saw a young black man—later identified as Mr. Brown—pointing a gun at him.Mr. Brown demanded his wallet.Mr. Brown reached into Mr. Retif's pockets and removed his wallet and cell phone.After dropping the cell phone, Mr. Brown grabbed the wallet and ran.Mr. Brown then entered the passenger side of a green Chevrolet truck with Texas license plates, which sped away.Mr. Retif called 911 to report the incident.²

Around the same time, Ms. Hammerstein was sitting on the porch of her Porteous Street residence watching her dog and exchanging text messages with her sister.She noticed a green truck pass her residence and then back up very quickly.A man emerged from the passenger's side of the truck, approached Ms. Hammerstein, pointed a gun to her head, and demanded her cell phone.After Ms. Hammerstein relinquished her cell phone, the robber entered the passenger side of the green truck and it sped away.Ms. Hammerstein then called 911 from her residence phone and described the robber as wearing a white T-shirt and blue jeans.

Also around the same time, Ms. Fortier arrived at her home in the 6500 block of General Diaz Street with her two children—a two year old son and five year old daughter.Ms. Fortier was returning from picking up her children from school.As Ms. Fortier was removing her children from her vehicle, she noticed an older model green truck speed down Porteous Street and turn onto General Diaz Street.A black man wearing a bandana over part of his face exited the passenger's side of the truck, and ran towards Ms. Fortier and her children.While pointing a gun at them, the robber demanded her purse.Ms. Fortier threw her purse—containing her wallet, cell phone, and several credit cards—and her keys towards the robber.The robber gathered the items and ran back to the truck.As Mr. Fortier watched the green truck fleeing the neighborhood, she noticed that it had Texas license plates.Immediately thereafter, Ms. Fortier flagged down a passing motorist, who was already on the phone with the police reporting the robbery.

The investigation

NOPD Detectives Stephen Kriebel and Roy Shackelford were patrolling the area when they received notice of the trio of armed robberies, which occurred within about a fifteen minute period.Detectives Kriebel and Schackelford relocated to the General Diaz Street address.³Shortly thereafter, the detectives were notified by an officer at the Porteous Street address that the victim, Ms. Hammerstein, was tracking the location of her stolen cell phone, an iPhone, using the "Find my iPhone" application.

NOPD Detective Russell Green was also in the area when he received the dispatch about the three robberies.Detective Green was informed that the tracking information indicated that Ms. Hammerstein's iPhone stopped moving around Iberville Street and Marais Street.Based on that information, Detective Green relocated to that area.He found the unoccupied, green truck parked in the area of Iberville Street and North Villere Street.After notifying the other police units of the truck's location, he set up surveillance around the green truck.Detectives Kriebel and Schackelford also relocated to that location.

Shortly thereafter, Detective Green observed three men, one of whom was identified as Mr. Brown, approaching the truck and notified other officers in the surveillance team.After the men entered the truck, NOPD surrounded the truck.The men were removed from the truck and arrested.Mr. Brown was removed from the driver's seat and several cell phones and credit cards were recovered from his pockets.The following items were removed from the interior of the truck: two firearms (one in the front seat and the other in the back seat), a camouflage hat, a red handkerchief, a black and white bandana, Mr. Retif's bank debit card (in the back seat), and a small amount of marijuana (in the front seat).⁴

Later during the day of the robberies, Mr. Retif went to the police station.He identified the green truck as the getaway vehicle used in the robbery.Detective Shackelford presented Mr. Retif with three separate photographic lineups.Mr. Retif identified Mr. Brown as the man who robbed him.⁵

In the days following robberies, Detective Kriebel spoke with the other two victims, Ms. Hammerstein and Ms. Fortier.Neither of the other victims were able to identify the robber from the photographic lineups.Both of the other victims were able to identify the green truck used in the robbery.Furthermore, Ms. Fortier reported that shortly after the robbery an unauthorized charge for the purchase of gasoline was made on her stolen American Express credit card.

Detective Kriebel later relocated to the gas station where Ms. Fortier's credit card was used.He spoke to the owner and viewed the video surveillance from the gas station.⁶Detective Kriebel also obtained the gas station's computer printout of the receipts for April 23, 2014, which shows that $40.36 was charged on Ms. Fortier's American Express credit card to purchase gasoline.One of the gas station employees found Ms. Fortier's purse in a trash can and turned it over to police.Mr. Retif's wallet was found inside Ms. Fortier's purse.

DISCUSSION

Errors Patent

A review of the record for errors patent reveals two.The first error patent is that in the bill of information, the State invoked the firearm provision of La.R.S. 14:64.3, which provides that when a firearm is used in the commission of an armed robbery the "offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence."Id.At the sentencing hearing, the district court sentenced Mr. Brown to sixty years at hard labor without the benefit of probation, parole, and suspension of sentence for each of the three convictions for armed robbery with a firearm.The district court did not, however, specify whether Mr. Brown's...