State v. Simms

• Decision Date: 18 June 2014
• Docket Number: No. 2013–KA–0575.,2013–KA–0575.
• Parties: STATE of Louisiana v. Sedrick SIMMS.
• Court: Court of Appeal of Louisiana — District of US

143 So.3d 1258

STATE of Louisiana

v.Sedrick SIMMS.

No. 2013–KA–0575.

Court of Appeal of Louisiana,Fourth Circuit.

June 18, 2014.

Leon A. Cannizzaro, Jr. District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.

Powell W. Miller, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.

(Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).

JAMES F. McKAY III, Chief Judge.

Sedrick Simms, appeals his convictions for armed robbery and possession of a fire arm by a convicted felon. We affirm the defendant's convictions, vacate his sentences and remand the matter to the trial court for further proceedings consistent with this opinion.

STATEMENT OF CASE

On February 28, 2012, the defendant, Sedrick Simms (“defendant”), was charged by bill of information with one count of armed robbery with a firearm and one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:64.3 and La. R.S. 14:95.1, respectively. On March 5, 2012, he entered a plea of not guilty. He subsequently filed a motion to suppress identification and a motion for preliminary hearing. On May 4, 2012, the trial court found probable cause to substantiate the charges and denied the motion to suppress.

On August 20, 2012, the matter proceeded to trial. On August 21, 2012, the jury returned a verdict finding the defendant guilty of both charges. On August 22, 2012, the State filed a multiple offender bill of information pursuant to La. R.S. 15:529.1.¹

On December 3, 2012, the defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal. On December 12, 2102, the trial court denied both motions. On January 7, 2013, the trial court sentenced the defendant to thirty years for armed robbery with a firearm and twenty years for possession of firearm by convicted felon, to run concurrently, with credit for time served, without the benefit of probation, parole, or suspension of sentence. Thereafter, the State re-filed the multiple offender bill of information.

On March 12, 2013, the defendant filed a motion for appeal. The trial court granted the motion for appeal the same date and set the return date for May 28, 2013.

On April 12, 2013, a multiple offender hearing was held; the trial court adjudicated the defendant a double felony offender. The trial court vacated the thirty year sentence, originally imposed for armed robbery with a firearm, and sentenced the defendant to seventy years with the Louisiana Department of Corrections, with credit for time served, without benefit of probation, parole, or suspension of sentence. The twenty year sentence imposed on the defendant for his conviction of felon in possession of firearm remained. The defendant then orally moved for reconsideration of sentence, which the trial court denied.² On May 1, 2013, the record was lodged with this Court, but did not contain the transcript of the April 12, 2013 multiple bill hearing. On June 11, 2013, this Court received the missing transcript, completing the record for appeal.

STATEMENT OF FACT

The following evidence was adduced at trial.

In the early morning hours of January 2, 2012, after an evening of celebrating with friends on Bourbon Street, Dana Currington (“victim”), was driven by a friend to her residence at 524 Austerlitz Street. When she arrived there she discovered that the screen door was locked; she knocked on the window to awaken her boyfriend who was asleep inside. She then waved to her friend acknowledging that she was safe. Immediately thereafter, she was accosted by Sedrick Simms, the defendant, who was armed with a 9 millimeter gun. He demanded that she give him her money. He took her purse; he fled down Austerlitz Street toward Annunciation Street where the victim saw him enter the side of a green house in the 3900 block of Annunciation Street. The victim called 911 to report the robbery. At around 5:30–6:00 a.m., New Orleans Police Department (“NOPD”) Officer Carlos Amador, arrived at the scene and took the victim's statement before returning to headquarters.

At around 8:00 a.m., that same morning, Darleen Currington (victim's mother), walked down to the green house on Annunciation Street where she confronted Ms. Wells, who lived there, concerning the identity of the defendant. Around 2:30–3:00 p.m., the she made a 911 call with information as to the defendant's identity. While she and the victim were waiting for the NOPD to arrive, they notice the defendant walking down the street with his girlfriend and pushing a baby stroller. He was wearing black pants and a black “Dickie” shirt. The victim once again called 911.

Officer Waterman was the first to arrive to the scene in the 3900 block of Annunciation Street. As he approached the defendant and his girlfriend, the defendant took off running toward the 3700 block of Annunciation. Officer Waterman chased the defendant in a foot pursuit, but ultimately lost sight of him. He immediately set up a perimeter in the area encompassing the defendant within a 6–7 block radius. Soon thereafter, the K–9 unit arrived and the manhunt continued until the K–9 alerted to a house at 617 Peniston Street. Officer Trey Pichon climbed the roof of the house and discovered the defendant. The only thing discovered, pursuant to a pat down search of the defendant, was a 9 millimeter unspent cartridge. The defendant was no longer wearing the black “Dickie” shirt, that he had discarded earlier and was later located at the scene. The defendant was arrested.

Incident to this arrest, a search warrant was issued for 3817 Annunciation Street, the defendant's presumed residence; however, no gun or any of the victim's possessions were discovered.

During the course of trial, six witnesses testified on behalf of the State: the investigating officers, Officer John Waterman, Officer Trey Pichon, and Detective Kristen Krzemieniecki, the victim's mother, the victim, and the Orleans Parish Prison telephone supervisor, Deputy Donald Hancock.

The defendant called three witnesses to testify for the defense, including the responding K–9 officer, Sergeant Harry Stovall, the defendant's uncle, Sidney Simms, as well as Detective Krzemieniecki.

Prior to testimony, the parties stipulated that the defendant was previously convicted of discharging a firearm where it was foreseeable that death or greater bodily harm would be committed in the 24th Judicial District Court for Jefferson Parish, Case No. 2006–3442, which was the predicate offense for the felony possession of a firearm charge. The parties further stipulated that the 911 operator, if called to testify, would testify as to the authenticity and the contents of the 911 tapes as well as the incident recalls. The 911 tapes were played for the jury.³

Officer John Waterman testified that on January 2, 2012, he had the occasion to investigate an armed robbery that took place at 524 Austerlitz Street. He was assigned to second watch in the Sixth police district on patrol when he received a call from dispatch at around 3:44 p.m. to investigate a suspicious person. He stated that the dispatcher was able to tell him the location of the suspect because the dispatcher was on the line with the alleged victim of the armed robbery that had occurred earlier that morning at about 5:20 a.m. Officer Waterman was informed by dispatch that the victim had observed the subject, later identified as the defendant, walking in the 3900 block of Annunciation Street towards downtown accompanying a black female and was pushing a baby stroller. The defendant was also described as wearing a black “Dickie” shirt and black jeans.

Officer Waterman subsequently relocated and observed the defendant at the intersection of Peniston Street and Annunciation Street, two blocks east from where the defendant was initially observed. He testified that the defendant matched the description of the subject given by dispatch and was wearing a black button-up style “Dickie” shirt and black jeans. As a result, he elected to stop the defendant to investigate further. He stated that when he attempted to stop the defendant for questioning, the defendant “immediately took off running in an eastbound direction on Annunciation Street toward downtown.” He attempted to pursue the defendant but lost sight of him after he jumped a chain link fence on the corner of Annunciation and Amelia Street. He called for backup and set up a containment perimeter. After setting up the perimeter, a K–9 unit was called to assist the police in searching for the defendant. He testified that approximately three hours later the defendant was found on the roof of an abandoned home, located at 617 Peniston Street. Following the defendant's arrest, he conducted a search of defendant's person and found a nine millimeter round in the right pocket of the defendant's pants. He stated that at the time of the arrest, the defendant was no longer wearing the black shirt, but that the shirt was later located on the scene.

On cross-examination, Officer Waterman testified that the black “Dickie” shirt found on the scene does not have a hoodie and that he never found a hoodie. He estimated that at least ten officers and one dog were searching for the defendant, and they never found a hoodie, a gun, or a purse. He stated that he never spoke with the victim, and that the lead detective in the case was Detective Krzemieniecki.

Officer Troy Pichon testified that he assisted in the investigation of the armed robbery on January 2, 2012. Specifically, he helped the officers in setting up the containment perimeter and apprehending the defendant. He stated that after the dog alerted the officers to the property at 617 Peniston Street, the officers spent about an hour and half searching the property for the defendant. Eventually, the officers used a ladder to go to the roof...