State v. Clark

• Decision Date: 30 September 2015
• Docket Number: No. 50,137–KA.,50,137–KA.
• Citation: 181 So.3d 150
• Parties: STATE of Louisiana, Appellee v. Robert L. CLARK, Jr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

181 So.3d 150

STATE of Louisiana, Appellee

v.Robert L. CLARK, Jr., Appellant.

No. 50,137–KA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 30, 2015.

Robert L. Clark, Jr., In Proper Person.

Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.

J. Schulyer Marvin, District Attorney, John M. Lawrence, R. Randall Smith, Alexandra Aiello, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS, and GARRETT, JJ.

BROWN, Chief Judge.

Defendant, Robert L. Clark, Jr., was charged by bill of information with armed robbery with a dangerous weapon, said weapon being a firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. Following a jury trial, defendant was found guilty as charged. The trial court sentenced defendant to serve 70 years at hard labor without benefit of parole, probation or suspension of sentence for the conviction of armed robbery. Defendant was given an additional penalty of five years at hard labor without the benefit of parole, probation or suspension of sentence for the use of a firearm in the robbery. The sentences were ordered to run consecutively.¹ Defendant now appeals, urging that the evidence was insufficient to convict, the trial court erred in refusing to grant a mistrial, the trial court erred in not conducting a hearing on pro se motions filed by defendant, and the consecutive sentences of 70 years and five years are excessive. We affirm defendant's conviction and sentences.

Facts

On September 2, 2011, defendant was charged by bill of information that on May 29, 2011, while armed with a dangerous weapon, a .45 caliber semi-automatic pistol, he robbed Phillip Gullo and Dillon Lopez in Bossier Parish, Louisiana, in violation of La. R.S. 14:64. The bill was amended on February 1, 2013, to add the Best Value Mini–Mart, LLC (referred to throughout the trial and herein as "Emerson's Grocery") as a victim, and to specifically charge defendant under both La. R.S. 14:64 and 14:64.3.

In the afternoon of May 29, 2011, a man wearing sunglasses, a dark long-sleeved shirt, gloves and a cap came into Emerson's Grocery armed with a pistol. He fired a round between the two clerks, Phillip Gullo and Dillon Lopez. He then demanded "all the money." Gullo and Lopez complied, emptying two registers. The man was not satisfied, telling them, "I know ya'll cash checks here, give me the rest of the money. Where's the real money at?" At that time, Gullo opened up the third drawer, took the money from it, and put it into the bag. The man then instructed Gullo and Lopez to go to the back. When Gullo and Lopez got to the back room, they locked the door, and Gullo phoned the sheriff's department. Gullo gave officers a description of the suspect as a light-skinned black male wearing a yellow ball cap with a fleur de lis on it, black sunglasses, black gloves, a brown long-sleeved shirt, black pants and duck boots. Gullo also described the suspect as being between six feet to six feet two inches tall and weighing approximately 180 pounds. Gullo testified that the man who robbed him ran into the woods toward the Fillmore Cemetery. The store manager determined that the amount of the money taken was $6,400. The store had surveillance cameras and a video of the robbery was introduced into evidence at defendant's trial, which was held on April 16–19, 2013.

Sufficiency Of The Evidence

Under the Jackson v. Virginia standard, due process requires that no person be made to suffer the onus of a criminal conviction except upon sufficient proof, defined as evidence necessary to convince a trier of fact beyond reasonable doubt of the existence of every element of the offense. Appellate courts review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 01–1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide an appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05–0477 (La.02/22/06), 922 So.2d 517 ; State v. Robertson, 96–1048 (La.10/04/96), 680 So.2d 1165.

In this case, there is no question that an armed robbery with the use of a firearm occurred. At the trial in this matter, the state proved beyond a reasonable doubt that $6,400 was taken from the two clerks at Emerson's Grocery. Both Gullo and Lopez testified that they emptied money from registers at Emerson's Grocery into a bag. Angela Gullo, manager of Emerson's Grocery, testified that the amount of loss was $6,400. The state also proved that the robber used force or intimidation by pointing the gun at the store clerks while demanding money and firing a round between them; this bullet and a shell casing were recovered from the scene. The video of the robbery clearly shows a firearm being used. Evidence established that the firearm was a .45 caliber Sig Sauer pistol. Thus the elements of armed robbery with the additional penalty for the use of a firearm were clearly met.

The issue in this case is the identity of defendant as the perpetrator of the crimes. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05–0992 (La.11/29/06), 943 So.2d 1047. Positive identification by only one witness is sufficient to support a conviction. Id. It is the factfinder who weighs the respective credibilities of the witnesses, and a reviewing court will generally not second-guess those determinations. Id.

On the day of the robbery, the officers were unable to locate the perpetrator. To determine who the robber was, deputies went through cell phone tower dumps to try to locate people who had made calls in the area during that time. They also reached out to the media by playing the surveillance video on every news station and running ads in the newspaper and The Inquisitor with still shots from the surveillance footage. Approximately two months after these efforts, the Bossier Parish Sheriff's Department received an anonymous call, which ultimately led to the arrest of defendant, Robert L. Clark, Jr.

After viewing the footage of the robbery, several people identified defendant as the perpetrator. Both store clerks identified defendant in open court as the person who robbed them. After the robbery, Gullo testified that he was shown photographs of four black males. He was unable to identify any of them as the person who robbed him. He did note that one of the men had similar features to the person that robbed him. That person was not defendant. Gullo identified defendant in open court as the man who robbed Emerson's Grocery. Gullo further explained that although the man had on a ball cap and sunglasses, he recognized that defendant had the same facial features as the robber. Specifically, Gullo pointed out defendant's jawline, nose, and ears. He was a "hundred percent" sure that defendant was the person who robbed him.

Shortly after the robbery, Lopez picked a suspect out from a six-person photo array and identified him as the robber. This person was also a light-skinned black man who had ears and bone structure similar to defendant. The man identified in the photo array was not defendant. Lopez testified that the police had not shown him any images of defendant, but he had seen images in the media of defendant. The images in the media identified defendant as the robber. Lopez identified defendant in court as the person shown robbing the convenience store in the video.

Additionally, two of defendant's co-workers, Louis Morgan and Christopher Dehoyes, when shown the video footage of the robbery, identified defendant as the robber. Defendant's ex-girlfriend, Jasmine Billingsley, when she saw the video on TV and later with the deputies, identified defendant as the robber. Defendant's aunt, Judith Cork, when shown the footage during initial questioning with Detective Lt. Bletz, recognized the robber in the video footage as resembling her nephew, Robert Clark, Jr.; however, at trial as a defense witness, she said the person in the video was not defendant.

Physical evidence also connected defendant to the armed robbery at Emerson's Grocery. While investigating the robbery, officers learned that a gun had been stolen from the car of Lauren Rudy, who worked at Deja Vu. We note that after the state rested its case, defendant testified that he previously worked at Deja Vu. Ms. Rudy testified that the gun was "a Sig .45" and identified in court a photograph that appeared to be the gun. The gun shown to Ms. Rudy was recovered from Christopher Dehoyes, a co-worker of defendant's, who testified that he purchased the gun from defendant for $180. After purchasing the gun, Dehoyes fired two test rounds. Gary Bass, who recovered the gun for BPSO, also fired a test round for a reference sample.

Richard Beighley with the North Louisiana Crime Lab, an expert in firearms identification, testified that he examined the shell casing recovered at the scene of the crime, the two that Dehoyes fired, and the reference sample that Bass fired, and that all came from the same gun, the .45 caliber Sig Sauer pistol that was admitted into evidence. Beighley explained that guns generally have unique marks on them, and that every time a gun is fired it leaves an impressed mark in the primer. Beighley further testified that while he was not able to make a positive identification of a bullet in this case because of its damage, the bullet had the same class characteristics so as to have been fired from the gun admitted into evidence in this case. Specifically, the rifling was similar but...