State v. Romero
| Decision Date | 15 December 2021 |
| Docket Number | 21-173 |
| Parties | STATE of Louisiana v. Tristan ROMERO |
| Court | Court of Appeal of Louisiana — District of US |
Chad M. Ikerd, Louisiana Appellate Project, P. O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Tristan Romero
M. Bofill Duhe, District Attorney, W. Claire Howington, Assistant District Attorney, Iberia Parish, 300 Iberia Street, Suite 200, New Iberia, LA 70560, (337) 369-4420, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
Court composed of Billy Howard Ezell, John E. Conery, and Van H. Kyzar, Judges.
Defendant appeals his convictions and sentences for attempted first degree murder, armed robbery with a firearm, and intimidation of a witness. For the reasons herein set forth, we amend the conviction for attempted first degree murder to that of attempted second degree murder, remand for resentencing for this offense, affirm the conviction and sentence for armed robbery with a firearm, and affirm the conviction and sentence for intimidation of a witness.
Defendant, Tristan Romero1 , was charged by bill of information filed on September 23, 2015, with attempted first degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30, armed robbery with the use of a firearm, a violation of La.R.S. 14:64 and La.R.S. 14:64.3, and intimidating a witness, a violation of La.R.S. 14:129.1. An amended bill was filed on January 14, 2016.2
Jury selection began on March 28, 2017. During the trial, it was established that the victim of the attempted murder and robbery, Thaddeus Davis, was in the driver's seat of his car in line at the drive-thru at the Red Barn store in New Iberia, Louisiana, on May 25, 2015. Defendant and two other men entered Davis's vehicle. Defendant demanded Davis's money, but then shot Davis after he threw the money out of the car. The bullet struck Davis in the left arm and shoulder area. The three men then fled, without picking up the money Davis threw on the ground.
Mr. Dana Lopez was also in the drive-thru line at the Red Barn at the time of the shooting. He was a passenger in the vehicle in front of the one driven by Davis. Defendant later approached Lopez on the street, picked up a milk crate, told Lopez to keep Defendant's name out of his mouth, and put the crate down. Lopez later identified Defendant in a photographic lineup as the person who shot Davis. Defendant was found guilty as charged on March 29, 2017.
A habitual offender bill was then filed on March 30, 2017. Therein, the State sought to have Defendant sentenced as a second or subsequent offender on the charge of armed robbery with a firearm. On July 31, 2017, Defendant was adjudicated a second offender and sentenced to seventy-five years at hard labor without benefit of probation, parole, or suspension of sentence for armed robbery with a firearm. He was also sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence for attempted first degree murder and to twenty years at hard labor for intimidation of a witness. All sentences were to be served concurrently. Defendant, through his counsel, orally moved for reconsideration of the sentences, which was denied.
Defendant filed a Motion and Order for Appeal on August 31, 2017, which was granted on September 1, 2017. The record was lodged with this court on March 12, 2021.3
Defendant is now before this court asserting three assignments of error: 1) the State failed to prove he was guilty as charged; 2) the convictions for both attempted first degree murder and armed robbery constitute double jeopardy; and 3) the trial court erred in denying the defense's Batson challenge.
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 there are two errors patent.
First, the amended bill of information failed to provide the full citations for attempted first degree murder. This bill included the citation for first degree murder, La.R.S. 14:30, but failed to include the citation for the attempt statute, La.R.S. 14:27. It is noted that the original bill of information actually contained the proper statutory references. The erroneous citation of a statute in the charging instrument is harmless error if the error does not mislead Defendant to his prejudice. La.Code Crim.P. art. 464. Defendant does not allege any prejudice because of the incomplete citation, and, on review, we find the error harmless.
Next, the record before this court does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of the opinion and to file written proof in the record that Defendant received the notice. State v. Hutchinson , 18-445 (La.App. 3 Cir. 12/12/18), 261 So.3d 927, writ denied , 19-108 (La. 5/28/19), 273 So.3d 313, cert. denied , ––– U.S. ––––, 140 S.Ct. 648, 205 L.Ed.2d 391 (2019).
In his first assignment of error, Defendant contends the State failed to sufficiently prove that he was guilty as charged. This assignment is segmented into three subclaims: (1) the evidence was insufficient to prove he was the shooter; (2) if the evidence proved he was the shooter, the facts do not support a finding that he had the specific intent to kill; and (3) the evidence was insufficient to prove he was guilty of intimidating Lopez into not testifying or giving a statement to police.
When an appellate court reviews a sufficiency of the evidence claim, the standard applied is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Captville , 448 So.2d 676, 678 (La.1984). This standard has been codified by our legislature in Louisiana Code of Criminal Procedure article 821, which provides: "A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty." When circumstantial evidence is used to prove the commission of the offense, Louisiana Revised Statute § 15:438 mandates, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." State v. Neal , 00-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. State v. Cummings , 95-1377, p. 4 (La. 2/28/96), 668 So.2d 1132, 1134. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. It is not the function of the appellate court to assess credibility or reweigh the evidence. Id.
State v. Dorsey , 10-216, pp. 42-43 (La. 9/7/11), 74 So.3d 603, 633, cert. denied , 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012).
Detective Walter Kimble testified that he investigated the shooting of Thaddeus Davis in May 2015, and Defendant was arrested in connection with the offense. His investigation revealed that Davis was in line in his vehicle ordering food when he was approached by Defendant, robbed, and then shot. Detective Kimble searched the area and found a "spent forty round cal" and several one dollar bills. A copper
jacket, which is the "sleeve that basically surrounds a projective inside of a casing," was found inside Davis's car.
Detective Kimble spoke to Davis and Dana Lopez. Lopez, who was a passenger in a vehicle in line in front of Davis, was shown a photographic lineup and identified Defendant as the man who shot Davis. The identification occurred on June 26, 2015, a month and one day after the shooting.
Detective Kimble determined there was video surveillance at the Red Barn. That video footage was admitted into evidence and played for the jury. At approximately two minutes and fifteen seconds into the video, a black male in a white shirt walks toward the parking lot of the Red Barn. At seven minutes, a black male in a black shirt gets into the front passenger side of a car in the drive-thru line, occupied up to that time by the driver, later determined to be the victim Thaddeus Davis. A second black male, who is wearing a white shirt, gets in the back driver's side of the same car. A third black male, who is also wearing a black shirt, subsequently gets in the back passenger seat. The three men in the passenger seats all eventually get out of the car. After the man seated behind the driver gets out, he approaches the driver's door, which was opened at some point, and points a gun at the driver. The driver throws money out the open back driver's side door, the same door the man wearing a white shirt and holding the gun exited. The man with the gun neither picks up the money nor acknowledges its presence on the ground. After the man with the gun turns to run, the driver of the car gets out of the car and runs. He then returns to the car and tries to drive off.
The State then called Thaddeus Davis to testify. He stated that he was in line at the Red Barn on May 25, 2015, when Defendant opened the back door of his vehicle, pulled out a gun, and told Davis to give him everything he had. Davis testified, "I gave him everything I had," and Defendant then shot Davis in the arm.
Davis identified the driver of the jeep in front of his vehicle seen on the video by the name "Heavy"...
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