State v. Hawthorne
| Decision Date | 19 June 2013 |
| Docket Number | NO. 2012-KA-1406,2012-KA-1406 |
| Parties | STATE OF LOUISIANA v. DARVIN M. HAWTHORNE |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 494-563, SECTION "J"
(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Terri F. Love)
Leon A. Cannizzaro, Jr.
District Attorney
J. Bryant Clark, Jr.
Assistant District Attorney
Sherry Watters
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT, DARVIN M.
On February 5, 2010, Defendant, Darvin Hawthorne ("Defendant"), was charged by bill of information with simple burglary of a vehicle in violation of La. R.S.14:62(A).1 Defendant appeared before the trial court for arraignment on February 10, 2010 and entered a plea of not guilty.
Subsequently, on February 10, 2010, Defendant filed several pretrial motions, including a motion for preliminary hearing and a motion for suppression of statements, evidence, and identification.2 On April 16, 2010, the trial court found probable cause to substantiate the charge and denied the motion to suppressthe evidence. The trial court apparently did not address the motion to suppress the statements or the motion to suppress identification.3
The matter initially proceeded to trial on January 26, 2011, but resulted in a hung jury. The second time the case went to jury trial, on June 28, 2011, the jury found Defendant guilty as charged.
On August 8, 2011, Defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal, both of which the trial court denied. The same date, the Defendant was sentenced to nine years in the Department of Correction, to run concurrently, with credit for time served. Subsequently, the State filed a multiple offender bill charging Defendant as a fourth felony offender. The multiple offender bill of information alleged that in addition to his 2011 conviction for simple burglary of a vehicle, Defendant previously pled guilty to possession of cocaine in violation of La. R.S. 40:967(C)(2) on July 29, 1993, in Case No. 364-628; on August 28, 1998, in Case No. 399-182; and on July 19, 2001, in Case No. 419-080.
Following a multiple bill hearing, on October 21, 2011, Defendant was adjudicated a fourth felony offender pursuant to La. R.S. 15:529.1.4 Defendant objected to the trial court's ruling and moved for downward departure of the mandatory minimum sentence under State v. Dorthey,5 623 So.2d 1276 (La. 1993).6 The trial court denied Defendant's request, vacated its previous sentence,and sentenced Defendant to twenty years at hard labor, with credit for time served. Defendant orally moved for reconsideration of sentence and filed a motion for appeal and designation of record. The trial court denied the motion for reconsideration, and granted the motion for appeal.
At the June 28, 2011 trial, the only witnesses to testify were arresting officers, Detective Brandon Singleton and Officer Calcedonia Fiorella of the Second District of the New Orleans Parish Department, and the owner of the vehicle Defendant allegedly burglarized, Robert Lapeyre.7
Detective Brandon Singleton ("Det. Singleton") and Officer Calcedonia Fiorella ("Off. Fiorella") were working a paid detail for Tulane University in an unmarked police car the night of Defendant's arrest, December 8, 2009. Prior to the arrest, there had been a number of automobile burglaries in the surrounding areas of the university.
The officers testified on the night of the incident as they were driving on Freret Street in the downtown direction and as they approached Richmond Place, observed Defendant walking between the sidewalk and parked cars, pulling on door handles and looking into windows. The officers then observed Defendant take a right on Richmond Place, a one-way street. Due to the fact that there had been a number of automobile burglaries in the surrounding areas of the university, the officers elected to investigate further.
The officers continued down Freret Street, took a right on Nashville and on Loyola Street before taking another right on Richmond Place. The officersproceeded on Richmond Place back towards Freret Street. At that point, the officers observed Defendant walk in and out of a driveway of a house. Both officers found this suspicious, but Off. Fiorella stated that because they had not yet observed an actual crime, they made the block again. This time, however, the officers parked on Loyola Street and proceeded to walk up Richmond Place. Both officers stated that street was dark and not very well lit. As they continued walking the officers noticed a "dome light" come on in a parked vehicle on the left side of the street. Det. Singleton estimated that the light was about fifty feet from where the officers were walking.
The vehicle, a white Honda Accord, was parked in front of 8 Richmond Place. As the officers approached the car, Det. Singleton observed Defendant in the passenger side of the Honda rifling through the glove box and the console. Off. Fiorella testified that he observed Defendant in the passenger side of the vehicle, but he could not see what Defendant was doing in the car.
Det. Singleton stated that he continued to observe Defendant for about ten to twenty seconds and saw Defendant take a "little pouch" out of the right cup holder of the console and stick it in his left jacket pocket. Thereafter, Det. Singleton opened the door, and got Defendant out of the car. He then asked Defendant if it was his car and whether he had permission to use the car. Defendant responded no to both of Det. Singleton's questions. Det. Singleton then asked Off. Fiorella to place Defendant in handcuffs. Off. Fiorella testified that he did not hear what words were exchanged between Defendant and Det. Singleton prior to handcuffing Defendant. He also stated that he handcuffed Defendant for officer safety because Defendant was wearing a "puffy jacket" and because they "didn't know if [Defendant] had a weapon or anything like that."
While Defendant was being detained by Det. Singleton, Off. Fiorella knocked on the door of the residence where the Honda was parked in front to investigate further. Off. Fiorella testified that Robert Lapeyre ("Lapeyre") answered the door, and when questioned by the officer stated that he owned the car; that he did not know Defendant; and that Defendant was not authorized to use the car. Lapeyre also relayed this information to Det. Singleton. Thereafter, Det. Singleton advised Defendant of his rights and arrested him. Det. Singleton testified that he recovered a coin purse from Defendant's left front pocket, but returned it to Lapeyre. He did not, however, recall if he placed the purse back in the car console or if he physically handed it to Lapeyre.
On cross-examination, both Det. Singleton and Off. Fiorella admitted that there was no sign of forced entry into the car and that it was likely unlocked. Det. Singleton also stated that he did not initially stop the Defendant when he observed him pulling on car door handles because he thought Defendant could have been a drunk college student. The officers testified that on the night of Defendant's arrest they were being paid to patrol the area as private detail security for Tulane University, the main objective of which is to protect and keep the students safe. Det. Singleton admitted that he did not log anything into evidence.
Lapeyre also testified at trial. He stated he was living at 8 Richmond Place on the night of December 9, 2009 and previously owned a white Honda Accord, but that the primary driver of the car was his mother-in-law, Shirley Taylor ("Taylor"). Lapeyre testified that Taylor lives in Ponchatoula, but visits frequently and was at his house on the night of the incident. He stated that at approximately 11:30 p.m. that evening, he opened the door to Off. Fiorella. Off. Fiorella asked if he owned the car, to which he replied yes, and if he gave permission for Defendantto be in the car, to which he replied no. Lapeyre testified that earlier that evening, he retrieved some of Taylor's luggage from the car and did not think that he locked it.
On cross-examination, he stated that he never actually saw Defendant in his car and/or the Defendant in possession of anything from the car. Lapeyre testified that he was unable to tell the officers if anything was missing from the car because his mother-in-law usually drives it. He stated that the officers never spoke with Taylor about the coin purse because she was sleeping at the time. Lapeyre could not recall if the officers returned anything to him, nor did he recall ever seeing a gray pouch.
A review of the record for errors patent reveals two errors.
The first error patent is that the trial court failed to wait twenty-four hours after denying Defendant's motion for new trial to sentence Defendant as required by La. C.Cr.P. art. 873. The record provides that Defendant's motion for a new trial and post-verdict acquittal of judgment was denied on August 8, 2010, and the trial court sentenced him to nine years on that same date. The transcript also does not indicate that Defendant waived his right to the delay.
La. C.Cr.P. art. 873 provides:
If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.
A defendant may implicitly waive the twenty-four hour delay by announcing his readiness for sentencing. State v. Pierre, 99-3156, p. 7 (La. App. 4 Cir.7/25/01), 792 So.2d 899, 903 (...
To continue reading
Request your trial