State v. Love

• Decision Date: 13 January 2016
• Docket Number: No. 50,238–KA.,50,238–KA.
• Citation: 185 So.3d 136
• Parties: STATE of Louisiana, Appellee v. Victor LOVE, Appellant.
• Court: Court of Appeal of Louisiana — District of US

185 So.3d 136

STATE of Louisiana, Appellee

v.Victor LOVE, Appellant.

No. 50,238–KA.

Court of Appeal of Louisiana, Second Circuit.

Jan. 13, 2016.

Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant Victor Love.

James E. Stewart, Sr., District Attorney, Tommy J. Johnson, Kelvin M. Rodgers, Joshua K. Williams, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMSand DREW, JJ.

DREW, J.

Victor Love was charged with armed robbery while possessing a firearm in violation of La. R.S. 14:64and 14:64.3. The polled jury revealed 10 votes to convict as charged.

A motion for post-verdict judgment of acquittal was denied.

The defendant was sentenced to 20 years at hard labor for the crime of armed robbery, under La. R.S. 14:64, and an additional five years at hard labor under La. R.S. 14:64.3, the firearm enhancement statute. The sentences were ordered to be served consecutively, for a combined total of 25 years at hard labor without benefits.

A motion to reconsider sentence was denied.

He now appeals. We affirm in all respects.

FACTS

On January 3, 2014, Alecia Hill, an assistant store manager at the Brookshire's store on Pines Road in Shreveport, was robbed at gunpoint as she worked the customer service desk. The actual robbery is on video,¹ and Ms. Hill identified the defendant in court as the person who robbed her.

Ms. Hill testified as to the facts of the armed robbery.²

Ms. Hill further testified:

• when the robber left the store, she reported the event to her manager;

• she and the manager went outside to get a look at the getaway car;

• she also called the police and pulled up the surveillance video;

• the robber's vehicle was a "four door greyish Charger";³ and

• the events depicted on the video exactly match her recollection.

Shreveport Police Department Detective John Jackson testified that:

• on January 7, 2014, he showed Hill a six-person photographic lineup, and she immediately identified the defendant as the robber;

• the video corresponded to Hill's recollection of the incident;⁴

• while Hill was attempting to get the money from the cash drawer, she kept her hands up to show the defendant she was not a threat;

• the robber on the video was the defendant sitting in court;

• the surveillance video was sent to media outlets and placed on Crime Stoppers, which quickly led him to the defendant;

• outside of Hill, there were no other witnesses to the incident;

• he never recovered the firearm used during the robbery; and

• he never located the defendant's Dodge Charger.

DISCUSSION

I. Sufficiency

The defendant claims:

• the state failed to prove beyond a reasonable doubt that he was armed with a dangerous weapon at the time of the robbery;

• he is therefore not guilty of armed robbery, and his sentence should not have been enhanced under La. R.S. 14:64.3;

• the only evidence the state presented of a dangerous weapon was the testimony of the victim, Hill; and

• Hill did not accurately recall what happened, as the video did not show him pulling a gun from his pocket, but only pulling up his shirt.

The state responds that the defendant is merely making a credibility argument which is in the province of the jury which is the trier of fact.

Our law on appellate review of sufficiency issues is well settled.⁵

The defendant was charged with armed robbery, a violation of La. R.S. 14:64, which provides that armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. His sentence was enhanced pursuant to La. R.S. 14:64.3because he was armed with a firearm at the time of the robbery. The issue is whether any rational trier of fact could have found the essential elements of armed robbery with a firearm beyond a reasonable doubt.

To convict the defendant of armed robbery, the state was required to prove: (1) a taking (2) of anything of value (3) from the person or in the immediate control of another (4) by the use of force of intimidation (5) while armed with a dangerous weapon. In order to enhance the defendant's sentence under La. R.S. 14:64.3, the state was required to prove that the dangerous weapon used in the commission of the robbery was a firearm.

We have examined Hill's testimony at trial and have laboriously viewed the video of the crime. We agree that the defendant at least lifted his shirt to brandish his firearm. We also see on the video the extreme fright of a victim who had ample opportunity to view the weapon from three or four feet away. The jury apparently found Hill's testimony credible, and the verdict is clearly sustainable on this record.

The production of a weapon is not necessary in an armed robbery prosecution where the state can establish through witness observations all of the elements of the offense beyond a reasonable doubt, including the existence and use of a dangerous weapon. State v. Ball, 32,498 (La.App.2d Cir.12/15/99), 748 So.2d 1249, writ denied, 2000–0506 (La.10/6/00), 770 So.2d 364.

In viewing the evidence in the light most favorable to the prosecution, we find the state presented sufficient evidence to convince any rational trier of fact beyond a reasonable doubt that this defendant committed the crime of armed robbery while armed with a firearm.

II. Excessiveness

The defendant claims that his sentence of 25 years at hard labor without benefits is unconstitutionally harsh and excessive. He argues that the trial court considered inappropriate factors in the imposition of his sentence, and failed to consider mitigating factors such as his personal history.

Our law on appellate review of sentences is well settled.⁶

Defendant's combined sentencing exposure under the two statutes was 104 years at hard labor without benefits. His sentence was on the very low end of this range.⁷ In addition, since he was previously convicted of armed robbery, he could have been prosecuted as an habitual offender, which would have further increased his exposure to the penitentiary.

The defendant's argument that his sentence is unconstitutionally excessive is in no way supported by the record. The trial court considered the factors in La. C. Cr. P. art. 894.1, and stated for the record that the defendant would continue to break the law if not incarcerated.

The trial court considered the following aggravating factors:

• the defendant's conduct manifested deliberate cruelty to his victim;

• he created the risk of death or great bodily harm to more than one person;• he used threats of violence during the robbery, and used a firearm;

• he had a prior felony conviction;⁸ and

• there were no mitigating circumstances.

The defendant argues that the trial court did not request a presentence investigation,⁹ did not discuss his personal or employment history, and failed to consider injuries he had sustained from a fall in jail. The defendant also complains that, as stated in his motion to reconsider the sentence, he has an intellectual disability, and was under the influence of drugs at the time he committed the offense. He believes he has potential for rehabilitation if drug treatment became available to him.

The defendant argues that the use of a firearm was an inappropriate consideration since he was already sentenced for the use of a firearm separately from the armed robbery conviction. This court has held that some factors under La. C. Cr. P. art. 894.1(B)can be subsumed in the charge of armed robbery, yet these factors can still be considered in sentencing. State v. Willis, 45,857 (La.App.2d Cir.12/15/10), 56 So.3d 362, writ denied, 2011–0150 (La.6/17/11), 63 So.3d 1034.

The trial court did not abuse its discretion with this sentence.

III. Discovery Violations and Bench Conference Exclusion

In defendant's pro se assignment of error, he argues:

• prior to trial and again prior to sentencing, he notified the trial court of numerous discovery items that were not disclosed to him;

• the Communications Audio Dispatch ("CAD") Report and fingerprint analysis sheet information were not disclosed to him;

• the trial court should have questioned his defense attorney about the specific discovery items he was entitled to;

• the trial court should have produced an order directing the district attorney to provide the discovery items; and

• the trial court conducted an off-the-record bench conference and denied the defendant the right to hear what was being discussed, when there was no reason for him not to be involved.

The Sixth Amendment to the United States Constitution and La. Const. Art. I, § 13, safeguard a defendant's right to effective assistance of trial counsel. State v. Thomas, 2012–1410 (La.9/4/13), 124 So.3d 1049. A defendant asserting an ineffective assistance claim must show: (1) that defense counsel's performance was deficient, and (2) that the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant has the burden of showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland, supra.

Generally, a claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief ("PCR") in the trial court. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. A motion for new trial is also an acceptable vehicle by which to raise such a claim. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007–2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, the claim may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

There are times when a defendant must be present during court proceedings.¹⁰

A defendant is not...