State v. McElroy

• Decision Date: 07 March 2018
• Docket Number: 17–826
• Citation: 241 So.3d 424
• Parties: STATE of Louisiana v. Kentrell D. MCELROY
• Court: Court of Appeal of Louisiana — District of US

241 So.3d 424

STATE of Louisiana

v.Kentrell D. MCELROY

17–826

Court of Appeal of Louisiana, Third Circuit.

March 7, 2018

Julie C. Tizzard, 700 Camp Street, Suite 101, New Orleans, LA 70130, (504) 529–3774, COUNSEL FOR DEFENDANT/APPELLANT: Kentrell D. McElroy

Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Eleventh Judicial District, P. O. Box 1557, Many, LA 71449, (318) 256–6246, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

KYZAR, Judge.

The defendant, Kentrell D. McElroy, appeals his convictions for armed robbery and aggravated kidnapping. For the following reasons, we affirm the conviction for armed robbery, but vacate the conviction for aggravated kidnapping.

DISCUSSION OF THE RECORD

The defendant was charged by bill of information filed on November 12, 2015, with aggravated kidnapping, a violation of La.R.S. 14:44, and armed robbery, a violation of La.R.S. 14:64. After waiving his right to trial by jury, a bench trial was held on January 17, 2017.

The evidence at trial established that the victim, Latasha McKinney, a shift manager at the Many, Louisiana Pizza Hut restaurant, was taking a deposit to the bank on August 24, 2015, when a man, who was hiding in the backseat of her car, pointed a gun at her face and ordered her to keep driving. As she drove on, she noticed a silver car following her car. The defendant subsequently took Ms. McKinney's phone and the cash from the money bag and threw five twenty-dollar bills at her as he exited her car. He then got into the silver car, which drove off. The evidence established that more than $3,000.00 was taken from Ms. McKinney.

Ms. McKinney first identified the defendant from a photographic lineup. She later identified him as the perpetrator during her trial testimony. At the close of the bench trial, the trial court found the defendant guilty of both aggravated kidnapping and armed robbery.

The defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. He was then sentenced to life in prison at hard labor, without the benefit of probation, parole, or suspension of sentence, on the aggravated kidnapping conviction, and twenty years at hard labor, without benefit of probation, parole, or suspension of sentence, on the armed robbery conviction, with both sentences ordered to run concurrently.

On appeal, the defendant argues that the charge of aggravated kidnapping was improperly instituted by bill of information and that the evidence was insufficient to prove that he committed each of the offenses.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent, one of which is directly raised by the defendant herein and is addressed in our discussion of his first assignment of error.

In addition, the defendant waived his right to trial by jury and elected to be tried by a judge alone. While a written waiver was filed on October 18, 2016, it was signed only by counsel for the defendant and not signed by the defendant himself, as required by La.Code Crim.P. art. 780. In addition, the written waiver referenced only the charge of aggravated kidnapping. However, the October 27, 2016 court minutes indicate that the defendant and his attorney were present in court when the trial court personally addressed the defendant concerning his right to a jury trial and the waiver thereof. Thereafter, the trial court found that the defendant had "knowingly, intelligently and voluntarily waived his right to a trial by jury[;]" thus, rendering the error harmless. State v. Bell , 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830 ; State v. Brundy , 15–1233, 16-263 (La.App. 4 Cir. 8/24/16), 198 So.3d 1247, writ denied , 16-1748 (La. 6/16/17), 220 So.3d 755.

OPINION

Improper Charging Instrument

In his first assignment of error, the defendant contends that the offense of aggravated kidnapping was improperly charged by bill of information.

The defendant was charged via a single bill of information with both armed robbery and aggravated kidnapping. Louisiana Constitution Article 1, § 15 provides that "no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury." Similarly, La.Code Crim.P. art. 382(A) provides that "[a] prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury." Aggravated kidnapping is punishable by life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. La.R.S. 14:44. Therefore, the institution of prosecution for this offense should have been by grand jury indictment. The failure to proceed by grand jury indictment is a "fatal defect." State v. Underdonk , 11-1598, p. 7 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, 374, writ denied , 12-910 (La. 10/8/12), 98 So.3d 848 ; State v. Engel , 13-519, p. 3 (La.App. 5 Cir. 12/19/13), 131 So.3d 1017, 1018. Consequently, this requires reversal of the defendant's conviction for aggravated kidnapping.

We now turn to whether the remaining conviction for armed robbery must also be vacated as a result of the inclusion of the aggravated kidnapping charge in the bill of information. In State v. Donahue , 355 So.2d 247 (La.1978), the institution of prosecution for second degree murder and armed robbery was by bill of information.

The supreme court annulled the second degree murder conviction and discussed the armed robbery conviction as follows:

Armed robbery is neither a capital crime nor a crime punishable by life imprisonment. La.R.S. 14:64 ; La.Const. art. 1, § 15 (1974). It may be charged by grand jury indictment or by bill of information. State v. Williams , 341 So.2d 370 (La.1976) ; State v. Bradford , 298 So.2d 781 (La.1974). It is clear, therefore, that had the armed robbery charge been brought alone, it could properly have been brought by bill of information.

Moreover, if the second degree murder had been quashed before trial began, the prosecution for armed robbery could have continued on the valid robbery count. This is so because each count in a multiple-count charge independently charges an offense. It is this principle which underlies the entire procedure whereby offenses are joined in a single count, as explained in Wharton's Criminal Procedure, as follows:

"Each count, being in legal contemplation a separate indictment or information must contain all the allegations necessary to constitute the offense sought to be charged in such count, for it is upon the principle of the joinder of offenses that the joinder of counts is allowed. In determining whether an indictment or information is sufficient, each count must be treated as a whole, and the jury is not required to treat such an indictment or information as an indivisible unit." 2 Wharton's Crim.Proc. § 295, pp. 138–39 (12th ed., Torcia ed., 1975)[.]

Thus, if one count of a two-count indictment or information is invalid, the entire accusation will not be quashed, but, instead, only the defective counts will be quashed. See Selvester v. United States , 170 U.S. 262, 18 S.Ct. 580, 42 L.Ed. 1029 (1898). Moreover, Louisiana law allows the granting of partial relief in response to a motion to quash. State v. Mitchell , 319 So.2d 357 (La.1975).

The only real question, then, is whether the charge and evidence of second degree murder presented to the jury simultaneously with the armed robbery charge so infected the otherwise properly charged and tried armed robbery prosecution as to require reversal of the armed robbery conviction. We believe that it did not.

In the first place, the two crimes arose out of the same transaction, and facts as to each would have been respectively admissible at separate trials of the other as part of the res gestae. R.S. 15:447, 448. This is not a situation where the counts could not have been joined and where such misjoinder resulted in inherent prejudice to defendant on each charge. See State v. McZeal , 352 So.2d 592 (La.1977). Here, because of a technical but fatal deficiency in one count of the accusation defendant should not have been tried on that count. Under these circumstances, we hold that our quashing of the second degree murder count post trial does not affect the otherwise valid armed robbery charge and trial, and that the conviction and sentence for the crime of armed robbery should be allowed to stand.

Thus, while we nullify defendant's conviction and sentence for second degree murder, we find that this defect does not infect the conviction and sentence for armed robbery.

Id. at 249–50 (footnote omitted); see also Underdonk , 92 So.3d 369.

Thus, we conclude that the defective bill of information as to the aggravated kidnapping count nullifies only the defendant's conviction for that offense. If the armed robbery charge had been brought alone, it could have properly been charged by bill of information. Moreover, had the aggravated kidnapping charge been quashed or severed prior to trial, the prosecution for armed robbery could have continued separately.

The germane issue is whether the evidence of aggravated kidnapping presented concurrently with that of the armed robbery so infected the properly charged and tried armed robbery prosecution as to require reversal of the armed robbery conviction. We find that it does not.

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae , that "constitutes an integral part of the act or transaction that is the subject of the present proceeding." Res gestae events constituting other crimes are

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