State v. Davis

• Decision Date: 24 March 1999
• Docket Number: No. 97-KA-0817.,97-KA-0817.
• Parties: STATE of Louisiana v. Tyronne DAVIS and Frank Trammell.
• Court: Court of Appeal of Louisiana — District of US

735 So.2d 708

STATE of Louisiana v. Tyronne DAVIS and Frank Trammell.

No. 97-KA-0817.

Court of Appeal of Louisiana, Fourth Circuit.

March 24, 1999.

Rehearing Denied April 14, 1999.

Harry F. Connick, Orleans Parish District Attorney, Richard R. Pickens, II, Fortune A. Dugan, Jr., Assistant District Attorneys, New Orleans, LA, Counsel for Plaintiff/Appellee.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, LA, Counsel for Defendant/Appellant Tyrone Davis.

William P. Barnette, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, Counsel for Defendant/Appellant Frank Trammell.

Court composed of Chief Judge ROBERT J. KLEES, Judge STEVEN R. PLOTKIN, Judge CHARLES R. JONES.

PLOTKIN, Judge.

By bill of information dated October 24, 1995, Frank Trammell, Tyronne Davis, and Norman Andrews were charged with attempted purse snatching. All three defendants pleaded not guilty; but, on November 21, 1995, Andrews changed his plea to guilty. On February 14, 1996, Trammell and Davis were tried together and were found guilty as charged by a six-person jury. On February 28, 1996, after the trial court sentenced Davis to seven years at hard labor and Trammell to twenty years at hard labor, the State filed a multiple bill as to both defendants. Davis entered a plea of guilty to the multiple bill, and the trial court set aside the original sentence and resentenced Davis to seven years at hard labor without benefit of probation, parole, or suspension of sentence. Trammell also pleaded guilty to the multiple bill, and the trial court vacated the original sentence and resentenced Trammell to twenty years at hard labor without benefit of probation, parole, or suspension of sentence.

It is from these convictions and sentences that defendants now appeal.

FACTS:

Lisa Hebert testified that she was leaving a Saints' game at the Superdome on October 1, 1995, and that she had her purse over her shoulder. She stated that in the area between the Superdome and the New Orleans Center, she was approached by two men who identified themselves as police officers. She then noticed that her purse, which had been closed when she put it over her shoulder, was open. She also said that the two police officers had three men with them and that these men were handcuffed. She testified that the handcuffed men pleaded with her and apologized to her. She recalled being bumped and nudged as she and her friend walked through the crowd after the Saints' game.

Detectives Landry Jackson and Randy Lewis testified that they were in plain clothes working a paid detail at the Superdome. They stated that they saw Davis and Trammell following people and examining their purses and back pockets. Lewis testified that he saw Andrews unsuccessfully attempt to open one woman's purse. Davis would step in front of the intended victim while Andrews would attempt to open the purse. Lewis further testified that he saw Davis step in front of Ms. Hebert and her boyfriend in order to slow them down as they left the Superdome. He said that he then saw Trammell with a T-shirt over his hand unsnap Ms. Hebert's purse and reach into it. Lewis handcuffed Trammell, while Jackson arrested Davis and Andrews.

Crystal Butler testified that she, her son, and Trammell were standing on a ramp listening to a second line band when the police grabbed Trammell and handcuffed him. She did not know why the police arrested him. Mark Amos testified that he knew Trammell and Ms. Butler and that he saw them watching the band outside the Superdome when the police arrested Trammel and two other men. Ron Williams testified that he knew Ms. Butler and that he saw her and Trammell walking on the ramp outside the Superdome. He further testified that he did not see Trammell attempt to go into anyone's purse.

ERRORS PATENT, ASSIGNMENT OF ERROR NO. 5 (TRAMMELL), ASSIGNMENT OF ERROR NO. 1 (DAVIS) & PRO SE ASSIGNMENT OF ERROR NO. 5 (DAVIS):

A review of the record shows an error patent with regard to each of the defendants' sentences, which also forms the basis of the sole assignment by Davis' counsel. The trial court erred in imposing the sentences without benefit of parole because neither La. R.S. 14:65.1 nor La. R.S. 15:529.1(G) prohibit parole eligibility.¹ Moreover, eligibility for parole is to be determined by the Department of Public Safety and Corrections, not the trial court. La. R.S. 15:574.4; St. Amant v. 19th Judicial Dist. Court, 94-0567 (La.9/3/96), 678 So.2d 536. Therefore, this prohibition is hereby deleted from their sentences. There are no other errors patent.

ASSIGNMENT OF ERROR NO. 1 (TRAMMELL) & PRO SE ASSIGNMENT OF ERROR NO. 1

Both Davis and Trammell contend the trial court erred when it allowed the State to use other crimes evidence, namely the testimony of Detectives Jackson and Lewis that they saw the two men trying to open other purses. A review of the trial transcript shows that no objection was ever made to this testimony. The failure to contemporaneously object to this testimony precludes appellate review of the issue. La.C.Cr.P. art. 841. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2 (TRAMMELL) & PRO SE ASSIGNMENT OF ERROR NO. 2 (DAVIS):

Both Davis and Trammell complain that they received ineffective assistance of counsel based on their respective attorneys' failure to object to the other crimes evidence which was the subject of the first assignment of error. Generally, the issue of ineffective assistance of counsel is a matter more properly raised in an application for post-conviction relief to be filed in the trial court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Sparrow, 612 So.2d 191 (La.App. 4 Cir.1992). Only when the record contains the necessary evidence to evaluate the merits of the claim can it be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Kelly, 92-2446 (La.App. 4 Cir. 7/8/94), 639 So.2d 888,writ denied94-2087 (La.1/6/95), 648 So.2d 921. In the present case, there is sufficient evidence in the record to evaluate the claim as it relates to the failure of Davis and Trammell's attorneys to object to the other crimes evidence.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced him. With regard to counsel's performance, the defendant must show that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. As to prejudice, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, i.e. a trial with a reliable result. Id. Both showings must be made before it can be found that the defendant's conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id. A claim of ineffective assistance may be disposed of on the finding that either one of the two Strickland criteria has not been met. State v. James, 555 So.2d 519 (La.App. 4 Cir.1989), writ denied 559 So.2d 1374 (La.1990). If the claim fails to establish either prong, the reviewing court need not address the other. Murray v. Maggio, 736 F.2d 279 (5th Cir.1984).

Trammell and Davis argue that their attorneys should have objected to the testimony of the two detectives regarding Trammell and Davis trying to open other purses prior to them opening Ms. Hebert's purse. They assert that this testimony regarding other crimes was not admissible as res gestae under La. C.E. art. 404 and that under La.C.Cr.P. art. 770, they were entitled to an automatic mistrial because the State deliberately elicited this testimony about other crimes from the detectives.

La. C.E. art. 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it plans to use at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. (Emphasis added).

Generally, evidence of other crimes is inadmissible at trial because of the likelihood that the trier of fact will convict the defendant of the immediate charge based on his/her prior criminal acts. But, the underlined portion of the provision above is the codification of the principle of res gestae. Moreover, if evidence is admissible under the res gestae exception, it is not subject to any notice requirements. State v. Arvie, 97-990 (La. App. 3 Cir. 2/4/98), 709 So.2d 810, 818; writ denied, 98-2461 (La.1/29/99), 736 So.2d 827. The Louisiana Supreme Court, in State v. Brewington, 601 So.2d 656 (La. 1992) stated,

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La. 1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed.1972). The concomitant other crimes do not affect the accused's character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the

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