State v. Jones
| Decision Date | 17 January 1989 |
| Docket Number | No. KA-7120,KA-7120 |
| Citation | 537 So.2d 1244 |
| Parties | STATE of Louisiana v. Tyronne JONES and Glenn A. Martin. |
| Court | Court of Appeal of Louisiana — District of US |
Harry F. Connick, Dist. Atty., Sandra Pettle, Asst. Dist. Atty., New Orleans, for appellee.
M. Craig Colwart Orleans Indigent Defender Program, New Orleans, for defendant.
Before CIACCIO, LOBRANO and WILLIAMS, JJ.
Defendants Glenn Martin and Tyronne Jones each appeal their conviction of armed robbery, a violation of LSA-R.S. 14:64. The issues before this court with respect to Martin are: 1) whether he was denied a right to a trial by jury; 2) whether he was prejudiced by his joinder with defendant Jones, who had a record of previous felony convictions; 3) whether, viewing the evidence in the light most favorable to the prosecution, any reasonable trier of fact could have found Martin guilty beyond a reasonable doubt; and 4) whether he was denied effective assistance of counsel. The issues with respect to Jones are: 1) whether the trial court properly adjudicated him a second felony offender, i.e., a) whether he was properly Boykinized in the predicate convictions; b) the sufficiency of documentary evidence introduced at the multiple bill hearing; c) whether his guilty pleas in the predicate convictions were invalidated by the trial court's misstatement of the maximum penalty; and d) whether he was sufficiently identified at the multiple bill hearing as the perpetrator of the prior offenses; and 2) whether the sentence imposed was excessive. After viewing the record and the law applicable to this case, we affirm.
Defendants were convicted in a judge trial on August 28, 1986. After waiving legal delays, Martin and Jones were sentenced to five and twelve years at hard labor, respectively. After a multiple bill hearing on October 24, 1986, the trial court found Jones a second felony offender and re-sentenced him to 33 years at hard labor pursuant to LSA-R.S. 15:529.1.
Both defendants, through counsel, appeal the convictions on the basis of patent error review. By order of this court, Martin's two writ applications raising issues appropriate for appeal were filed herein as a supplemental brief. The brief contains Martin's four assignments of error, all of which we consider in this appeal. Further, Jones filed a supplemental brief assigning as error his adjudication and sentence as a habitual offender.
Wilfred Henley, Jr., the victim and a driver for Morrison Cab Co., testified that on the evening of March 4, 1986, he drove to 2414 South Derbigny Street in response to a call. There he picked up Martin and Jones, who had been visiting with Terry Johnson, a relative to both defendants. Both defendants entered the back seat of the cab. Henley drove defendants to their requested destination, the 2100 block of General Taylor Street. When Henley stated his fare, defendants grabbed him from behind, Martin securing Henley's forehead and Jones holding a knife to his neck. Henley surrendered $19.00 when defendants demanded money. Martin took the money and exited the cab, at which time Henley grabbed the blade of the knife and sped away with Jones still in the back seat. Henley received a small cut on his hand. After traveling several blocks, Henley stopped the cab, and Jones fled. Henley radioed his company dispatcher.
James Anderson, one of the NOPD officers who responded to the Henley call, testified that when they arrived Henley relayed what had just transpired. Anderson saw the laceration on Henley's thumb. Henley directed the police to 2414 South Derbigny, where they met with defendants' relative, Terry Johnson. They then proceeded to 2131 General Taylor, based on the information they obtained from Johnson. The officers were there speaking with Jones' aunt when Jones approached the house on foot. Henley was called to the scene and positively identified Jones as a perpetrator of the armed robbery. The police then learned that Martin was at 2200 General Taylor and proceeded to that address. There, Henley positively identified Martin as the second perpetrator. Henley also identified both defendants at trial.
Defendants' brief which was filed by counsel requests review of the record for errors patent. A review of the record reveals none.
Defendant Martin contends that he was denied the right to a trial by jury. We will consider this as assignment of error number one.
The right to trial by jury is protected by La. Const. Art. I, Sec. 17 (1974). Except in capital cases, a defendant may knowingly and intelligently waive trial by jury and elect to be tried by the judge. LSA-C.Cr.P. arts. 780, 782; State v. Wilson, 437 So.2d 272 (La.1983). In Wilson, the Louisiana Supreme Court dictated that the defendant must act voluntarily and knowingly for the waiver of trial by jury to be valid. The court stated that the trial judge should "advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record." Id. at 275.
In the present case, the following colloquy occurred between the trial judge and Martin:
And Mr. Martin, what is your desire?
MR. SMITH [Martin's counsel]:
Your Honor, Mr. Martin is going to have a Judge trial.
All right, let me talk to both of you now about this. Let me talk first to Mr. Martin. Mr. Martin, you understand that you have a right to a jury trial in this case?
THE WITNESS [Martin]:
Yes.
Do you know what a jury trial is?
All right, you have a right to have a 12 person jury trial, but you can give up that right and be tried by the Court alone, meaning me. The case would be presented to me as trial Judge, do you understand that?
And that I would decide the case without anyone's help, do you understand that? So on the one hand you have a right to a jury trial, on the other hand, you can give up that right and be tried by the Court alone. Have you talked to Mr. Smith about this?
What is your choice?
Meaning me alone, no jury?
It is clear that Martin was made aware of his right to a trial by jury and that Martin's choice was his own made voluntarily and intelligently. The trial judge advised Martin personally on the record of his right to a jury trial. Martin acknowledged his understanding of the difference between a jury trial and a judge trial. Martin personally waived his right to a trial by jury in open court on the record.
Therefore, Martin's first assignment is without merit.
In his next assignment of error, Martin contends he was prejudiced by his joinder at trial with his co-defendant Jones, who had a felony record. We disagree.
Defendants in this case were charged in the same bill of information. See LSA-C.Cr.P. art. 494. Jointly indicted defendants shall be tried jointly unless the State elects to try them separately or the Court, on motion of the defendant and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. LSA-C.Cr.P. art. 704. Martin asserts that Jones' prior criminal record created a "cloud of doubt which ... drifted over (Martin)," thereby resulting in an unjust and prejudicial joinder.
Martin's assignment is urged for the first time on appeal, after his conviction and sentence. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. LSA-C.Cr.P. art. 841. Martin's failure to timely move for a severance constitutes a waiver of his objection under Article 841. State v. Trass, 347 So.2d 1156 (La.1977); See State v. Bonner, 210 So.2d 319 (La.1968).
Nonetheless, we note that defendant was not prejudiced by his failure to object. A defendant is not entitled to a severance as a matter of right. Rather, the decision rests within the sound discretion of the trial judge. State v. Robertson, 509 So.2d 98 (La.App. 1st Cir.1987). A defendant's motion to sever based on the criminal record of a co-defendant does not, in itself, warrant a severance. State v. Robertson, supra; State v. Medlock, 297 So.2d 190 (La.1974); State v. Smith, 283 So.2d 470 (La.1973).
Therefore, Martin's second assignment is without merit.
Next, Martin sets forth various allegations which effectively constitute an assertion of insufficient evidence to convict him of the crime charged. Specifically, Martin points to lack of physical evidence of the weapon used and inconsistencies in the testimony of State's witnesses. 1 We consider this as Martin's third assignment of error.
When reviewing sufficiency of the evidence, we must determine whether, 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 charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986); State v. Fuller, 414 So.2d 306 (La.1982).
Under LSA-R.S. 14:64, armed robbery is 1) the taking; 2) of anything of value belonging to another; 3) from the person of another or that is in the immediate control of another; 4) by use of force or intimidation; 5) while armed with a dangerous weapon. State v. Augustine, 482 So.2d 150 (La.App. 4th Cir.1986). Furthermore, LSA-R.S. 14:24 provides: "All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals."
Viewing the evidence in the light most favorable to the prosecution in the instant case, it is clear that any rational trier of fact could have found beyond a reasonable doubt that Martin was a principal in the commission of armed robbery....
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