State v. Lambert

• Court: Court of Appeal of Louisiana
• Writing for the Court: SANDRA CABRINA JENKINS, Judge.
• Citation: State v. Lambert, 191 So.3d 630 (La. App. 2016)
• Decision Date: 16 March 2016
• Docket Number: No. 2015–KA–0629.,2015–KA–0629.
• Parties: STATE of Louisiana v. Joseph LAMBERT.

191 So.3d 630

STATE of Louisiana

v.Joseph LAMBERT.

No. 2015–KA–0629.

Court of Appeal of Louisiana, Fourth Circuit.

March 16, 2016.

Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals, Mithun Kamath, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.

Sherry Watters, Louisiana Appellate Project, New Orleans, LA, For Defendant/Appellant.

(Court composed of Judge DENNIS R. BAGNERIS, Sr., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).

SANDRA CABRINA JENKINS, Judge.

Defendant, Joseph Lambert, appeals his conviction and sentence for first degree robbery and his adjudication as a second felony offender. As to his conviction for first degree robbery, we find no merit to defendant's assigned errors and we affirm the conviction. As to the adjudication of defendant as a second felony offender, we find merit in defendant's argument that his 2008 guilty plea to attempted aggravated second degree battery—a non-crime under Louisiana law—cannot be used as a valid predicate conviction under the habitual offender statute, La. R.S. 15:529.1. Accordingly, we vacate defendant's adjudication and sentence as a second felony offender and reinstate the original sentence of twenty years at hard labor, without benefit of parole, probation, or suspension of sentence.

STATEMENT OF THE CASE

Defendant was charged in a bill of information with a violation of La. R.S. 14:64, armed robbery with a firearm.¹ Following a jury trial, defendant was found guilty of the lesser, responsive verdict of first degree robbery. The trial court denied defendant's motion for new trial and sentenced defendant to twenty years at hard labor without benefit of parole, probation, or suspension of sentence. On that same date, the trial court denied defendant's motion to quash the habitual offender bill filed by the State charging defendant as a second felony offender. Prior to a hearing on the habitual offender bill, defendant re-urged the motion to quash the bill and the trial court again denied the motion. Following the hearing on the habitual offender bill, the trial court adjudicated defendant a second felony offender, vacated his original sentence, and resentenced him to twenty-five years at hard labor.² Defendant's timely appeal followed.

STATEMENT OF FACT

On February 13, 2014, between 6 p.m. and 7 p.m., Damian Brown was robbed at gunpoint while walking home from a grocery store. Brown ran to the home of a close family friend across the street from where he was robbed and called the police.

Several officers responded to the scene and quickly apprehended the defendant through the victim's and officers' description and eventual identification of the defendant as the suspect who robbed the victim at gun point and who the initial officer observed in the area of the robbery within minutes of receiving the call.

Detective Kelly Morel of the New Orleans Police Department (NOPD) was on proactive patrol driving northbound on Orleans Ave. when she responded to a dispatch call of an armed robbery with a firearm near Bayou Road and North Johnson St. The dispatcher reported that two black male suspects fled toward Ursulines Ave. When Det. Morel turned onto North Rocheblave St. toward Ursulines Ave., she observed two males on one bicycle, one pedaling and the other sitting on the handlebars. The male sitting on the handlebars had his right hand extended out, holding onto the handlebars of a second bicycle, pulling it alongside of them. Det. Morel observed one male wearing a black sweatshirt and the other male wearing a gray sweater, matching the description of the perpetrators and a bicycle given by the dispatcher. As Det. Morel pulled alongside the suspects, they jumped off the bicycle and fled northbound on Gov. Nicholls St. Det. Morel notified dispatch that she observed suspects fitting the description and she was in pursuit of the suspects. While in pursuit, Det. Morel observed one suspect jump over a three to four foot tall spiked iron fence and run down an alley alongside a residence. The second suspect attempted to jump over the same fence but got caught on one of the spikes on the fence. Det. Morel reached out to grab the suspect but he was able to break free from the iron spike and fled. Det. Morel described the second suspect as having dreadlocks and wearing a black hooded sweatshirt with dark blue jeans.

Det. Morel then returned to the location where she had first observed the suspects. She noticed the suspect she attempted to grab was on the front steps of a residence. A resident began flicking the outside light, which Det. Morel believed was to signal her to get the suspect. At this time, other officers had arrived on scene. Det. Morel and another officer approached the suspect and handcuffed him. Det. Morel noticed that the suspect's pants were torn and asked him if he needed an ambulance. The suspect remained silent. Det. Morel then patrolled the area looking for the other suspect she had observed earlier, but did not find him.

During her testimony, Det. Morel identified a booking photo of defendant from the date of his arrest and stated it was an accurate reflection of defendant's appearance on that date. She also made an in-court identification of defendant as the same person she had pursued, observed getting stuck on the iron fence, and later apprehended on February 13, 2014.

NOPD Officer Christopher Long testified that, on February 13, 2014, he responded to an armed robbery with a firearm on North Johnson St. and Bayou Road. Officer Long briefly spoke to the victim who provided him with a description of the suspects. When Det. Morel notified dispatch that she observed two black males fitting the description, Officer Long relocated to Gov. Nicholls St. and North Rocheblave St. He observed a black male wearing a gray and black sweatshirt and blue jeans, fitting the description that Det. Morel had broadcast, walking up to a residence. Officer Long decided to conduct a stop, asking the male to step forward. Det. Morel advised him that the male was the person who fled from her, and they detained him.

Officer Long confirmed that he did not see the defendant throw down a handgun.

Also, when he patted the defendant down for weapons before placing him in the back of the police car, he did not find any gun on defendant's person. Officer Long identified the sweatshirt and jeans defendant was wearing at the time he was detained; he had observed that the jeans were ripped. Officer Long recalled that upon defendant being booked at lock-up, defendant alerted the jail medical staff that he had an injury to his scrotum/genital area.

NOPD Det. Thomas Ripp testified that through his investigation of the armed robbery, he learned that the perpetrators were two black males, one wore a gray sweatshirt and the other wearing a black or gray hooded sweatshirt. He also was informed that one of the perpetrators wore dreadlocks. Det. Ripp left the police station when he heard Det. Morel put out a call for assistance. He identified on a map the location of the armed robbery at North Johnson St. and Bayou Road, as well as the location of the apartment where he spoke to the victim. Det. Ripp confirmed that the description of the perpetrators broadcast by the 911 operator matched the description given to him by the victim.

Det. Ripp confirmed that he conducted a show-up lineup with the victim. He transported the victim to the location where defendant was being detained at North Rocheblave and Gov. Nicholls Sts. Det. Ripp and the victim remained in the patrol car while Det. Ripp communicated by radio with the uniformed officers at the scene, who then removed defendant from the back of a marked partrol car. Det. Ripp testified that the victim made an immediate identification of the defendant who was in handcuffs. According to Det. Ripp, the victim indicated he was positive of his identification and he knew the defendant from the neighborhood.

Det. Ripp authored the police report for this incident. He stated he was unable to find any video surveillance from cameras in the area of the robbery, although he noted that the convenience store at the corner of Esplanade Ave. and North Johnson St., where the victim was coming from at the time of the robbery, had a surveillance camera. Det. Ripp stated that he attempted to retrieve and view the video from that convenience store surveillance camera, but there was a technical difficulty and the video could not be played or viewed. He also stated that he tried unsuccessfully to obtain and view video from three businesses in the area.

Det. Ripp testified that he elected to do a show-up identification because defendant was apprehended so soon and only six blocks away from the scene of the robbery. On cross-examination, Det. Ripp confirmed that the robbery occurred in the evening hours, when it was dark outside, and that the area of the robbery was not brightly lit. He stated, however, that during the show-up identification of defendant by the victim, his police vehicle headlights were shining on defendant and another officer shined a flashlight in defendant's face. Defendant was then arrested for armed robbery.

Damian Brown testified that he was robbed on February 13, 2014, between 6p.m. and 7p.m., when it was dark outside. He stated that he was walking home from the Discount Express grocery store. At the intersection of North Johnson St. and Bayou Road, two black males approached him. Mr. Brown testified that he recognized one of the individuals, who had dreadlocks and was wearing a black hoodie and jeans; he had seen this individual on multiple occasions walking in the neighborhood but he did not know the man's name. Mr. Brown identified defendant as the person he had recognized that night and who robbed him. Mr. Brown stated that defendant asked him about some pills but then walked past Mr. Brown. Then defendant got behind him, produced a handgun, and told him to lie on the ground and...