State v. Callier

• Decision Date: 27 July 2005
• Docket Number: No. 39,650-KA.,39,650-KA.
• Citation: 909 So.2d 23
• Parties: STATE of Louisiana, Appellee v. Vernon CALLIER, Appellant.
• Court: Louisiana Supreme Court

909 So.2d 23

STATE of Louisiana, Appellee v. Vernon CALLIER, Appellant.

No. 39,650-KA.

Court of Appeal of Louisiana, Second Circuit.

July 27, 2005.

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Carey J. Ellis, Louisiana Appellate Project, for Appellant.

James D. Caldwell, District Attorney, Linda K. Watson, Anita T. Mack, Assistant District Attorneys, for Appellee.

Before GASKINS, CARAWAY and LOLLEY, JJ.

GASKINS, J.

The defendant, Vernon Callier, appeals his convictions for three counts of armed robbery and his sentences of 70 years at hard labor without benefit of parole, probation, or suspension of sentence on each count, to be served concurrently. The convictions and sentences are affirmed.

FACTS

On September 25, 2001, two masked men entered a Conoco station in Tallulah. One of the men carried a sawed-off shotgun and wore a turquoise bandana, black cap or mask, and a dark jacket. The other man was armed with a stick and carried a duffel bag which he filled with cigarettes, liquor, and Black & Mild cigars. Annie Allen, the cashier, testified that they took approximately $63.00 from the cash register. The men demanded that a customer in the store, Rev. Fred Jones, hand over his wallet. Another store patron, who was not available to testify at the trial, was also robbed.

Darshelle Grigsby drove into the station to buy gas while the robbery was in progress. She left her two children in her van and walked toward the store to pay. When she saw that the store was being robbed, she ran. The gunman chased her to the van and stole her purse.

Tallulah police received a tip that Vindey Walker was involved in these offenses. He confessed that he and the defendant entered the store and committed the robbery. Walker stated that he carried the duffel bag while the defendant was armed with a sawed-off shotgun. Another accomplice, Ben Hawkins, drove the getaway car and waited nearby to pick up Walker and the defendant after the robbery.

Tallulah police officers arrested the defendant at his house, in possession of some of the stolen merchandise. The sawed-off shotgun was found in a later search of the yard. The defendant was charged with three counts of armed robbery.

Following a trial by jury, the defendant was convicted as charged on all three counts of armed robbery. A motion for new trial was denied. The defendant was adjudicated a second felony offender and was sentenced to 70 years at hard labor without benefit of parole, probation, or suspension of sentence for each count.¹ The sentences were ordered to be served concurrently. The trial court stated that the defendant was not entitled to credit for time served because the defendant's parole on a prior armed robbery conviction had been revoked upon his arrest for the current charges. The court cited La. R.S. 15:571.3 in ruling that the sentence was not subject to diminution for good behavior.

The defendant appealed his convictions and sentences. He argues that the evidence was insufficient upon which to base his convictions, that his inculpatory statements should have been suppressed, that the state failed to prove that he was a habitual offender, and that the sentences imposed were excessive.

SUFFICIENCY OF EVIDENCE

The defendant contends that there was insufficient evidence upon which to base his convictions. He claims that the version of events testified to by Walker and Hawkins was suspect in that they worked out plea agreements with the state in order to reduce their sentencing exposure. The defendant asserts that Walker and Hawkins, who are cousins, had a very real incentive to be untruthful. The defendant contends that he was not involved in these offenses.

Although the record does not reflect that the defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

In any review of sufficiency, "the relevant question 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). When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Ultimately, all evidence — both direct and circumstantial — must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. State v. Hopkins, 39,258 (La.App. 2d Cir.3/2/05), 897 So.2d 854.

In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

A jury may convict upon an accomplice's uncorroborated testimony. State v. Matthews, 450 So.2d 644 (La. 1984); State v. Hopkins, supra. An accomplice is qualified to testify against an associate in crime even if the prosecutor offered him inducements to testify; such inducements merely affect the witness's credibility. State v. Neal, 2000-0674 (La.6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Jetton, 32,893 (La.App. 2d Cir.4/5/00), 756 So.2d 1206, writ denied, 2000-1568 (La.3/6/01), 787 So.2d 299; State v. Hopkins, supra. A conviction may be based even on the uncorroborated testimony of an accomplice or of someone making an agreement with the prosecution, provided the testimony is not incredible or otherwise insubstantial on its face. State v. Neal, supra.

Armed robbery is defined in La. R.S. 14:64 as 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.

Annie Allen, the cashier at the Conoco station, testified that on the evening of the robbery, the assailants broke through the door and announced a hold up. One assailant wore a turquoise bandana obscuring his face, a black jacket, and he carried a sawed-off shotgun. The other assailant also wore a face covering and carried a stick and a duffel bag. The gunman told Allen to put her hands up and he demanded the money in the cash register. Approximately $63.00 was taken. The assailant with the duffel bag took cigarettes and liquor, as well as Black & Mild cigars in the display cartons.

Ms. Allen testified that two patrons inside the store were also robbed. During the robbery, a customer who drove up to buy gas was accosted by the gunman. Ms. Allen identified the gun, the stick, the blue bandana, and the jacket. She also identified the Black & Mild cigars in the display containers and other items taken in the robbery that were recovered from the defendant.

Rev. Jones testified that he went into the store to get a newspaper and as he was leaving the store, the assailants entered. Both assailants were tall. The gunman was slightly taller than his accomplice. One man pointed a gun at Jones and demanded his money and his wallet. The other assailant had a black duffel bag which he filled with cigarettes, liquor, and Black & Mild cigars. According to Rev. Jones, one of the assailants called the other "cuz" twice.

Darshelle Grigsby testified that on the evening of the robbery, she went to the Conoco station to buy gas. She left her two children in the van while she went inside to prepay. She observed the robbery in progress and ran back to her van. The gunman came after her and took her money and her purse. She identified her purse that was recovered in the course of the investigation of these offenses.

Detective James Rash of the Tallulah Police Department testified regarding his investigation of these offenses. He stated that he was called to the Conoco station on September 25, 2001, at about 9:00 p.m. He recounted the description of the assailants and the details of the robbery given by the victims. A stick which was carried by one of the robbers was recovered at the scene.

On September 29, 2001, Detective Rash got an anonymous tip that Walker had been boasting about committing the robbery. Walker was brought in for questioning, given his rights, and admitted that he was the individual who carried the stick. He also stated that the defendant carried the gun. He said that they disposed of Rev. Jones' wallet under a church and hid Ms. Grigsby's purse in a hole in the floor of his house. Walker later led Detective Rash to the church where Rev. Jones' wallet was located. Ms. Grigsby's purse was found in the hole in the floor where Walker said it would be. Although he did not initially mention Hawkins, Walker later disclosed that Hawkins drove the getaway car. Walker's version of the incident matched that of the victims. Detective Rash testified that the defendant and Walker were tall and thin and matched the description of the individuals who robbed the store. Hawkins was shorter and heavier.

According to Detective Rash, the defendant was arrested on September 29, 2001, at a house where he lived with his brother. The defendant was lying on a bed with loot from the robbery, a dark coat that had a light blue bandana in the pocket, and a black knit cap. The display boxes for the cigars were present. The defendant's brother gave permission to search the house. The gun was not found at that time, but officers returned to the house later and found the gun in the yard under a pile of wood. There were no identifiable fingerprints on the gun.

In exchange for his testimony against the defendant, Walker was allowed to plead guilty to armed robbery and was sentenced...