State v. Declouet

• Decision Date: 12 October 2010
• Docket Number: No. 09-KA-1046.,09-KA-1046.
• Parties: STATE of Louisiana v. Alfred DECLOUET.
• Court: Court of Appeal of Louisiana — District of US

52 So.3d 89

STATE of Louisiana
v.
Alfred DECLOUET.

No. 09-KA-1046.

Court of Appeal of Louisiana,
Fifth Circuit.

Oct. 12, 2010.

52 So.3d 93

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Vincent Paciera, Jr., Jerome G. Smith III, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, Louisiana, for Defendant/Appellant.

Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

**2 On March 9, 2007, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Alfred Declouet, with four counts of armed robbery in violation of LSA-R.S. 14:64, specifically referencing in the bill of information that the dangerous weapon used in the commission of the robbery was a firearm, per LSA-R.S. 14:64.3.¹ Counts one, two and three related to an incident that occurred on August 28, 2006. Count four related to an incident that occurred on October 14, 2006. Defendant pled not guilty to all counts at arraignment on March 12, 2007. Defendant filed a Motion to Suppress Statement and Identification, which was denied by the court on May 13, 2008.

On January 21, 2009, Defendant proceeded to trial before a twelve-person jury

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on all four counts. On the same day, the State amended the bill of **3 information, noting an entry of nolle prosequi as to co-defendant, Gary Woods, on all counts. Additionally, Defendant filed a Motion in Limine seeking to prohibit reference to Defendant's assertion of his 5th and 6th Amendment rights, which was granted in part and denied in part on January 22, 2009. On January 23, 2009, the jury found Defendant guilty of armed robbery on counts one, two and three, and returned a verdict of not guilty as to count four.

Defendant filed a Motion for New Trial on March 19, 2009, which was denied by the court. Sentencing delays were waived, and on March 19, 2009, Defendant was sentenced to 22 years at hard labor in the Department of Corrections on each of the three counts, to be served consecutively. The State filed a multiple offender bill of information on the same day, and Defendant denied the allegations therein. At a hearing on September 24, 2009, Defendant admitted to being a second felony offender. The trial court vacated Defendant's original sentence on count one, and imposed an enhanced sentence of 49 1/2 years' imprisonment at hard labor, without benefit of parole, probation or suspension of sentence on count one, in accordance with LSA-R.S. 15:529.1, to run concurrently with all sentences being served and with each count. Defendant filed a written motion for appeal, which was granted on March 31, 2009.

FACTS

On August 26, 2006, Gary Woods and Michael Declouet, Defendant's cousin, were at a house located at 1331 Port Street when they received a call from Defendant. Defendant told Gary and Michael that he had a job for them, and that he would pay them each $1,500 if they helped him rob a recording studio called Studio 440. According to Defendant, the studio was being targeted by an acquaintance of Defendant's who wanted to open his own recording studio and eliminate the competition. According to the plan developed by Defendant, **4 Michael and Defendant were supposed to enter Studio 440 armed with guns and remove the recording equipment. In order to avoid suspicion in the event they were stopped by the police, Defendant designated Gary, who had a driver's license and insurance, to be the driver.

When the three perpetrators arrived at Studio 440, Michael and Defendant exited the vehicle and headed toward the studio. Shortly thereafter, they saw a white Chevy Tahoe pull up in front of the studio. The driver of the Tahoe exited the vehicle and entered Studio 440. At this point, Michael and Defendant advised Gary that they would need him to accompany them inside because they did not know how many people were in the studio. Gary, Michael and Defendant approached the side door of the studio and knocked.

Because Defendant had been to the studio the night before under the pretext of inquiring about studio time, the three perpetrators were let into the studio. There were three other people inside when Defendant, Michael and Gary arrived, including the owner of the studio, Christopher Villagran, and two of his clients, Kernel Reynolds and Cory Singer. Defendant and Mr. Villagran had a short conversation about studio time, and Defendant, Michael and Gary subsequently moved towards the door as if they were going to leave the studio. At this point, Defendant and Michael pulled guns on the victims.

Mr. Reynolds tried to grab the gun from Michael and a struggle ensued. Defendant, Michael and Gary were able to subdue Mr. Reynolds, and Michael retrieved a gun that was in Mr. Singer's possession and gave it to Gary. The three victims

52 So.3d 95

were searched, stripped of their cell phones and cash, and ordered to get down on the ground. Mr. Singer was ordered to bind Mr. Villagran and Mr. Reynolds with duct tape. Afterwards, one of the perpetrators taped Mr. Singer's hands behind his back. All three perpetrators wore gloves during the robbery.

**5 After the victims were bound and placed in a recording booth, the perpetrators put the recording equipment into large, black garbage bags. The perpetrators asked the victims who owned the Chevy Tahoe and, after Mr. Singer said it belonged to him, forced Mr. Singer to give them his keys. The perpetrators loaded the equipment into the Chevy Tahoe and left the studio. Shortly thereafter, Mr. Villagran called the police.

Sergeant Larry Dyess of the Jefferson Parish Sheriff's Office, Robbery Division, participated in the investigation of the robbery at Studio 440. When the officers arrived, the victims provided details about the robbery and gave descriptions of the perpetrators. During the initial victim interviews, Mr. Villagran and Mr. Singer described one of the perpetrators as having three gold teeth and being the tallest of the three. Mr. Villagran also described the tallest perpetrator, the one who initially asked about recording time, as the ring-leader of the group. At trial, Michael confirmed that Defendant was the tallest of the three perpetrators and the only one with gold teeth.

Approximately four months after the robbery, the police presented photographic lineups to Mr. Villagran, Mr. Reynolds and Mr. Singer. Mr. Villagran and Mr. Reynolds were unable to identify anyone from the lineups presented to them. Mr. Singer identified Defendant, Michael Declouet and Gary Woods as the three perpetrators of the Studio 440 robbery. Mr. Singer also identified Defendant as the tall perpetrator with the gold teeth. Mr. Singer testified at trial that he was one hundred percent certain that the people he identified in the photographic lineups were the people who participated in the robbery.

After he presented the photographic lineup to Mr. Singer, Sergeant Dyess obtained arrest warrants for Defendant, Michael Declouet and Gary Woods in connection with the Studio 440 robbery. Defendant was ultimately interviewed by **6 Sergeant Dyess and Detective David Mascaro, the officer investigating an armed robbery at Auto Zone in which Defendant had also been developed as a suspect, at the detective bureau. Prior to the interview, Sergeant Dyess read Defendant his rights and Defendant signed a Rights of Arrestee or Suspects Form.

Michael Declouet and Gary Woods ultimately pled guilty in federal court to conspiracy to interfere with commerce by threats of violence, a HOBBS Act violation, in connection with the robbery of Studio 440 and a number of other robberies. Both were incarcerated in federal prison at the time Defendant proceeded to trial. Michael Declouet was serving a sentence of 20 years imprisonment and Gary Woods had been sentenced to 18 years.

DISCUSSION

By this appeal, Defendant first contends that he was denied effective assistance of counsel because his trial attorney failed to request a jury instruction on the accomplice testimony given by Michael Declouet and Gary Woods at trial. Defendant preliminarily notes that the record is sufficient for a review of his ineffective assistance of counsel claim. Defendant first argues that, where the State's case relies upon the uncorroborated testimony of a purported accomplice, the trial judge should instruct the jury to treat such testimony with great caution. Defendant contends

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that a cautionary accomplice instruction is required unless there is material corroboration of the accomplice's testimony, and argues that there was no material corroboration of Michael Declouet and Gary Woods' testimony in the instant case. Specifically, Defendant contends that Cory Singer's identification of Defendant was very weak, and that the identification testimony was in direct conflict with the testimony of Christopher Villagran, who was unable to make an identification. As a result, Defendant argues that trial counsel's performance was **7 deficient because he failed to have the jury instructed on accomplice testimony, and that this deficiency denied him a fair trial.

The State contends that Defendant's claim is without merit because a special instruction on accomplice testimony is only applicable when the accomplice's testimony is uncorroborated. The State argues that, in the instant case, two of the three witnesses to the armed robbery testified at trial and corroborated the testimony of Michael Declouet and Gary Woods. Specifically, the State contends that the evidence offered at trial corroborated the accomplice testimony because it confirmed material points in the testimony offered by Michael Declouet and Gary Woods, and confirmed Defendant's identity and relationship to the situation. Therefore, because trial counsel was under no obligation to request an instruction on accomplice...