State v. Sherman
| Decision Date | 04 April 2012 |
| Docket Number | 11-1042 |
| Parties | STATE OF LOUISIANA v. CHRISTOPHER SHERMAN |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE
TENNTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C15026
J. DAVID PAINTER
Court composed of Oswald A. Decuir, Jimmie C. Peters, and J. David Painter, Judges.
AFFIRMED.
Mark O. Foster, Attorney at Law
COUNSEL FOR DEFENDANT-APPELLANT:
Christopher Sherman
Van H. Kyzar, District Attorney
Billy J. Harrington, Assistant District Attorney
Tenth Judicial District
Defendant, Christopher Sherman, appeals his convictions on the charges of armed robbery, a violation of La.R.S. 14:64, and false imprisonment while armed with a dangerous weapon, a violation of La.R.S. 14:46.1. Defendant asserts that the evidence was insufficient to convict him of these crimes and that to convict him on both charges violates his constitutional protection against double jeopardy. We affirm both convictions.
In the early morning hours of July 15, 2008, Patrick Slater, the victim, was working as the night auditor at a motel in Natchitoches Parish. At about 4:00 a.m., Defendant walked in and asked to use the telephone. The victim dialed the number for him, but while Defendant was on the phone, an armed and masked man entered. The second man ordered the victim to get face down on the floor. Defendant then put on a mask.
Defendant used duct tape to restrain the victim and then emptied the till. The two assailants dragged the victim to the motel office. One of the men ripped out the surveillance system, and the other man retrieved bolt cutters from Defendant's backpack and cut the lock off of the motel's safe. The pair emptied the safe and also took valuables from the victim, including his cell phone. Before leaving, they ripped the motel phone out of the wall. After they were gone, the victim managed to free himself. He then ran to another motel and called 911.
The State filed a bill of information charging Defendant with armed robbery, a violation of La.R.S. 14:64, and false imprisonment while armed with a dangerous weapon, a violation of La.R.S. 14:46.1. Defendant rejected the State's plea offer in open court and waived his right to trial by jury. A bench trial began on June 1, 2010. On the same date, the trial court found Defendant guilty as charged on both counts. The trial court sentenced Defendant to twenty-five years for armed robbery and eightyears for false imprisonment while armed with a dangerous weapon. The sentences are concurrent.
Defendant now appeals his conviction, assigning two errors. First, Defendant contends that the evidence was insufficient to support his convictions. Second, Defendant contends that to convict him on both charges violates his constitutional protection against double jeopardy. For the following reasons, we affirm both convictions.
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 one error patent in that it is unclear exactly when Defendant's Motion for Post Verdict Judgment of Acquittal was denied. The trial court indicated prior to sentencing that it had denied Defendant's Motion for New Trial and Motion for Post Verdict Judgment of Acquittal. Although it is clear that the trial court denied Defendant's Motion for New Trial on February 15, 2011, well in advance of the April 1, 2011 sentencing, it is not clear that it had denied Defendant's Motion for Post Verdict Judgment of Acquittal prior to that time.
Louisiana Code of Criminal Procedure Article 873 provides, in pertinent part:
If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.
Since the article does not mention a motion for post verdict judgment of acquittal, it is questionable whether a twenty-four-hour delay is required after the denial of such motion.
In State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La. 11/22/06), 942 So.2d 553, this court applied the twenty-four-hour delay to a motion for post verdict judgment of acquittal but found that the error was harmless since the defendant had not challenged the excessiveness of his sentence on appeal. See, e.g, State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103. Other circuits have also applied the twenty-four-hour delay of Article 873 to the denial of a post verdict judgment of acquittal. See, e.g., State v. Henderson, 41,657 (La.App. 2 Cir. 12/13/06), 945 So.2d 194, writ denied, 07-267 (La. 11/2/07), 966 So.2d 597; State v. Coleman, 02-345 (La.App. 5 Cir. 9/18/02), 829 So.2d 468; State v. Coates, 00-1013 (La.App. 1 Cir. 12/22/00), 774 So.2d 1223; State v. Bullock, 99-2124, 99-2125 (La.App. 4 Cir. 6/14/00), 766 So.2d 585, writ denied, 00-2114 (La. 5/25/01), 792 So.2d 753, and State v. Williams, 97-970 (La.App. 5 Cir. 1/27/98), 708 So.2d 1086.
Even assuming the delay applies, we find that any error in this respect is harmless because Defendant does not argue excessiveness of his sentence on appeal, and he does not claim that he was prejudiced by the lack of delay. See Boyance, 924 So.2d 437 and Shepherd, 839 So.2d 1103. Sufficiency of the Evidence
Defendant argues that the evidence adduced at trial was insufficient to support his convictions. Specifically, he argues that the victim's identification of him was not credible.
This court has explained:
State v. Perry, 08-1304, pp. 5-6 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, 346, writ denied, 09-1955 (La. 6/25/10), 38 So.3d 352.
Defendant suggests that this court should apply the test set forth in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977): "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."
While that test may be a useful tool for analysis, it is not required in the present case. The Brathwaite court devised the test for cases in which defendants allege that a suggestive identification procedure has been used. Id. Defendant does not make such an allegation in the present case. Another factor that takes this case out of the realm of Brathwaite is the fact that the victim had met Defendant before the crime occurred. Thus, he was not identifying a total stranger.
Although Defendant contends that the victim did not recognize him as a former co-worker, he acknowledges that the victim testified that he told the detective on the case, Stan Williams, that one of the robbers had worked at the motel.
Defendant's main argument is that the victim's testimony on this point does not jibe with his failure to tell the first officer on the scene, Victor Pinkney, that one of the robbers was a former motel employee. The victim did not make such a statement to the 911 operator, either, and acknowledged that he had been mistaken in thinking that he had made such an identification in his 911 call. Further, his written statement did not indicate that he recognized Defendant.
Also, Defendant suggests that the actions of the victim and Detective Williams after the offense indicated that the victim made no such identification when he initially spoke to Detective Williams. The record indicates that the victim never told anyone other than Detective Williams that one of the robbers was a former employee at the motel. Also, Detective Williams did not obtain confirmation that Defendant was a motel employee until December 2008, months after the crime. He did not obtain a written employee list until May 21, 2010.
The trial court made the following observations:
To continue reading
Request your trial