State v. Roberts

• Decision Date: 26 April 2013
• Docket Number: No. 2012 KA 1555.,2012 KA 1555.
• Parties: STATE of Louisiana v. Kenneth Truman ROBERTS, Jr.
• Court: Court of Appeal of Louisiana — District of US

116 So.3d 754

STATE of Louisiana
v.
Kenneth Truman ROBERTS, Jr.

No. 2012 KA 1555.

Court of Appeal of Louisiana,
First Circuit.

April 26, 2013.

[116 So.3d 755]

Scott M. Perrilloux, District Attorney, Patricia Parker Amos, Assistant District Attorney, Amite, LA, for Plaintiff/Appellee, State of Louisiana.

Powell Miller, New Orleans, LA, for Defendant/Appellant, Kenneth Truman Roberts, Jr.

[116 So.3d 756]

Before GUIDRY, CRAIN, and THERIOT, JJ.

THERIOT, J.

[1 Cir. 2]The defendant, Kenneth Truman Roberts, Jr., was charged by bill of information with one count of simple kidnapping of a person sixty-five years of age or older, violations of La. R.S. 14:45 and La. R.S. 14:50.2, and pled not guilty. Following a jury trial, he was found guilty as charged. He was sentenced to five years at hard labor and to an additional three years at hard labor because the victim was sixty-five years of age or older. He now appeals, challenging the trial court's denial of his motion for continuance and the court's questioning of a juror outside of his presence. For the following reasons, we affirm the conviction, amend the sentence, affirm the sentence as amended, and remand with instructions.

FACTS

On August 5, 2011, the victim, Delores Roberts, signed a written statement at her home indicating her son, the defendant, had broken into her bedroom and threatened to “beat [the victim's] brains in” with her Virgin Mary statue if she did not get out of bed and take $80 out of the ATM. The statement indicated the defendant told the victim not to make a sound or he would “hurt [the victim].” The statement set forth the victim was terrified of the defendant and “afraid [the defendant] really will kill [the victim].” The statement also indicated the defendant had previously threatened to cut the victim “like a pig” and throw her in a ditch if she did not give him money.

At trial, the victim testified, at approximately 10:00 p.m. on the night of the incident, the defendant knocked on her door, woke her up, and told her he needed money. He was upset because “somebody was after him and was going to shoot him.” The victim stated the defendant did not have anything in his hand, did not threaten her, and did not physically harm her. She claimed he drove her to the bank because she did not see well enough to [1 Cir. 3]drive at night, and she gave him $80, which he promised to repay. The victim indicated she signed the earlier statement about the incident and went to the Denham Springs Police Department because she was upset that the defendant had woken her up “in the middle of the night.” She denied that the defendant kidnapped her.

Denham Springs Police Department Officer Kevin Prejean also testified at trial. He indicated, on August 5, 2011, the victim “called in a complaint about a robbery,” and came to the police department at 7:24 a.m. Officer Prejean stated the victim was afraid of her son and had “snuck out of the house.” According to Officer Prejean, the victim alleged she had woken up to find the defendant holding a picture frame above her head. He threatened to “smash her skull if she didn't bring him to the ATM to get eighty dollars.” Officer Prejean testified the victim had also alleged the defendant threatened to hit her with a statuette of the Virgin Mary. Officer Prejean indicated the victim stated she rode with the defendant to the ATM and gave him $80 because “she was scared of him.”

Denham Springs Police Officers subsequently went to the victim's residence to contact the defendant. He did not respond to knocks on the door or on the windows. Thereafter, the police entered the residence using the victim's key. They found the defendant hiding in a bedroom closet. They arrested him for aggravated kidnapping and simple robbery and advised him of his Miranda¹ rights.

[116 So.3d 757]

DENIAL OF CONTINUANCE

In assignment of error number 1, the defendant argues the trial court abused its discretion in refusing to continue the trial after the State notified him it intended to offer fifteen hours of his phone calls.

[1 Cir. 4]At a pretrial conference on April 9, 2012, defense counsel “put on the record” that the State had informed her that morning that the State was in possession of phone records from the jail to the victim, as well as a CD of the records. The defense moved for a continuance, alleging there was also a possible witness “that was there,” and that could testify on behalf of the defendant, and who had not been subpoenaed by prior defense counsel. The State indicated it was not in possession of any transcripts but would let the defense listen to the calls. The court ruled, “Well, you all can listen to them together today, then. And we are going to start the trial at 9:00 o'clock in the morning.”

On April 10, 2012, the day of trial, the defense filed a written motion for a continuance, alleging:

The State produced phone logs accompanied with the recorded conversations between defendant and the victim on late Monday, April 9, 2012. The phone conversations range from December 2011—April 2012. Defense has not been properly afforded an opportunity to fully examine the documents and recordings. It is believed that the recorded conversations may include exculpatory statements and/or evidence. Further no transcripts of the recordings were provided.

The trial court denied the motion.

Additionally, at the hearing on post-trial motions, the State set forth:

As far as the State only received these tapes late Thursday, the Thursday afternoon before trial. In order to obtain these tapes we have to have a valid phone number to be able to compare it for the jail's records. I did not receive that until 2:30 or 3 o'clock that Thursday. Quickly was able to call the jail and get them to pull those records. That was Easter weekend. As the court well know[s], court was closed all that weekend. Monday[,] I made the defense aware of that. Court ordered me to provide a copy to the Defense counsel. In fact, that afternoon, the Monday afternoon after we finished with court[,] I played the specific conversations that would be played at trial to Defense counsel, going over which ones.

Furthermore, Judge, these are the Defendant's own statements. So he was aware that he had been making these [1 Cir. 5]phone call[s] to the victim. It's his own voice. He knew he was being recorded. And the conversation—the jail let's [sic] them know these phone conversations are being recorded.

Furthermore, Judge, prior Defense counsel was made aware that the State was looking and investigating into the possibility that this defendant was intimidating the victim in this case, and that we were going to be trying to attempt to pull these jail records. The problem was that we didn't have the correct phone numbers. The ones that we pulled, there were no recordings. Until we got the home phone number of the victim, which is where all these recordings came from.

The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. Albert, 96–1991 (La.App. 1st Cir. 6/20/97), 697 So.2d 1355, 1360.

There was no clear abuse of discretion in the denial of the motion for continuance.

[116 So.3d 758]

The trial court instructed the State to provide the defense with the opportunity to listen to the recordings, and the State “played the specific conversations that would be played at trial to Defense counsel [.]” At trial, the defense used the recordings to cross-examine the victim.

This assignment of error is without merit.

IMPROPER QUESTIONING OF JUROR

In assignment of error number 2, the defendant argues the trial court abused its discretion by questioning a juror without defense counsel present and by failing to replace the juror due to partiality.

The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. La.Code Crim. P. art. 797(2). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may [1 Cir. 6]be inferred. However, the trial court is vested with broad discretion in...