State v. Tapp

• Decision Date: 30 May 2001
• Docket Number: No. 99-KA-2279.,99-KA-2279.
• Citation: 788 So.2d 1215
• Parties: STATE of Louisiana v. Fred TAPP.
• Court: Court of Appeal of Louisiana — District of US

788 So.2d 1215

STATE of Louisiana v. Fred TAPP.

No. 99-KA-2279.

Court of Appeal of Louisiana, Fourth Circuit.

May 30, 2001.

COPYRIGHT MATERIAL OMITTED

William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, Edward R. Greenlee, Louisiana Appellate Project, Baton Rouge, Counsel for Defendant/Appellant.

Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER and Judge PATRICIA RIVET MURRAY.

WALTZER, Judge.

This opinion involves Fred Tapp's second appeal of his convictions and sentences for various armed robberies.

STATEMENT OF THE CASE

On 9 June 1994, Tapp was charged by bill of information with two counts of attempted armed robbery in violation of LSA-R.S. 14:27(64), six counts of armed robbery in violation of LSA-R.S. 14:64, and one count of second degree kidnapping in violation of LSA-R.S. 14:44.1.¹ At his arraignment on 1 July 1994, Tapp entered pleas of not guilty to all counts. Discovery and suppression hearings were held on 20 November 1995 and 10 February 1996. The trial court denied Tapp's motions to suppress statement, evidence and identification.

On 10 April 1996, the State severed two counts of armed robbery and proceeded to trial on the other four counts of armed robbery, two counts of attempted armed robbery and one count of second degree kidnapping. On 12 April 1997, after a three-day jury trial, Tapp was found guilty as charged on the four counts of armed robbery and one count of second degree kidnapping. He was found guilty as charged on one count of attempted armed robbery and found guilty of attempted first degree robbery on the other count. At the multiple bill and sentencing hearing held on 22 April 1996, Tapp admitted to the allegations of the multiple bill. He was sentenced as a third offender on each offense. The trial court sentenced Tapp to serve thirty-five years at hard labor without benefit of parole, probation or suspension of sentence on the attempted first degree robbery conviction and the attempted armed robbery conviction. Tapp was sentenced to serve twenty years at hard labor without benefit of parole, probation or suspension of sentence on the second degree kidnapping charge. The trial court also sentenced Tapp to serve seventy years at hard labor without benefit of parole, probation or suspension of sentence on each charge of armed robbery. The sentences were to run concurrently.

On 19 November 1997 this Court affirmed Tapp's convictions, but reversed the multiple bill adjudication and remanded for a new multiple bill hearing and sentencing based on the finding of an error patent.² State v. Tapp, 96-2201, unpub., 704 So.2d 992 (La.App. 4 Cir. 11/19/97).

On 11 March 1998 Tapp pled guilty to the multiple bill, charging him as a multiple offender on the armed robbery charged in count three. As to count three, the trial court sentenced him as a third offender to seventy years at hard labor without benefit of parole, probation, or suspension of sentence. As to count one, attempted first degree robbery, the trial court sentenced Tapp to twenty years at hard labor without benefit of parole, probation, or suspension of sentence.³ The trial court then sentenced him as follows: as to count two, twenty years at hard labor without benefit of parole, probation, or suspension of sentence; as to count four, thirty-five years at hard labor without benefit of parole, probation, or suspension of sentence; as to count five, seventy years at hard labor without benefit of parole, probation, or suspension of sentence; as to count eight, seventy years at hard labor without benefit of parole, probation, or suspension of sentence; and as to count nine, seventy years at hard labor without benefit of parole, probation, or suspension of sentence. The sixth and seventh armed robbery counts were severed from the others for trial. On 24 October 1996 the State nolle prosequied those two counts.

On 30 June 2000 Tapp's attorney filed an errors patent brief and a motion to withdraw as counsel of record. On 20 December 2000 Tapp filed a pro se supplemental brief re-urging the four assignments of error raised in appeal, 96-KA-2201. Tapp assigned as the fifth error that the minute entry and commitment order showing a seventy year sentence on all the armed robbery counts was being used to compute his time even though the original sentencing transcript indicated that he was sentenced to only seven years on counts three, five, eight, and nine. He argued that the harsher sentences imposed on 11 March 1998 should be corrected to reflect the original sentences imposed on 22 April 1996.

On 20 December 2000 this Court issued an order in which it noted that the brief filed by appellate counsel in the original appeal, 96-KA-2201, did not comply with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, and Tapp had re-urged his original assignments of error. In the interests of judicial economy, this Court ordered that the scope of this appeal be expanded to include Tapp's conviction in addition to his sentencing.

On 20 February 2001 Tapp's new counsel filed a supplemental brief in which he declared that he had reviewed Tapp's pro se claims in his original appeal, 96-KA-2201, and that he had reviewed the original record and found no non-frivolous issues to raise. Counsel also filed a motion to withdraw as counsel of record. On 2 March 2001 Tapp filed a second supplemental pro se brief and added an additional argument under his original assignment of error number three, sufficiency of the evidence.

STATEMENT OF THE FACTS⁴

About eight-thirty in the evening on 2 April 1994, Renee Ewing was walking in the 7900 block of Fig Street on her way home when a stranger grabbed her by the arm. She turned and looked at the subject. He had a gun pointed at her. He forced her to walk to a side street. After she told him that she did not have any money, he searched her. The subject then told her to continue walking. The subject fled in the opposite direction. Ewing ran to a nearby service station and called 911. Ewing described the perpetrator as a dark-skinned African-American male, 5'8"-5'11", and weighing 160-180 pounds. The perpetrator had a broad nose and a few gold teeth. The perpetrator had a bad body odor and was wearing a red San Francisco starter jacket with a white shirt underneath. Ewing identified Tapp as the perpetrator later that evening after he was apprehended. Ewing positively identified Tapp at trial as the perpetrator.

On the same evening, Simone Cherry, Takia Payne and Shondrell Perilloux were walking from the Carrollton Shopping Center to Payne's grandmother's house. As they approached Apricot Street, a stranger approached them from behind and put a gun to Payne's back. The subject told them not to turn around and to walk slowly. He told them to give him their money. Cherry and Perilloux told him that they did not have any money. The subject took Perilloux's gold rope earrings that she was wearing. Payne gave him the money she had with her, approximately $55.00. The subject told the girls to continue walking. He then fled the area. The girls went to Payne's grandmother's house and called the police. While the girls were at the house, they heard police sirens. They followed the sirens and located the police. The girls informed the officers that they had been robbed. The girls described the perpetrator as an African-American male with gold teeth and a red San Francisco starter jacket. They noted the perpetrator had a broad nose. Payne and Cherry were able to identify Tapp as the perpetrator that evening. All three girls identified Tapp at trial as the perpetrator.

At approximately 8:20 p.m. on 2 April 1994, New Orleans Police Officer Simon Hargrave responded to a call of an attempted armed robbery in the 3100 block of South Carrollton. Officer Hargrave met with Renee Ewing at the Shell Service Station at the intersection of Carrollton and Earhart. Ewing provided the officer with a description of the perpetrator. He broadcast this description over the police radio. As he was taking Ewing home, he learned that a subject matching the description was seen in the area of the 2000 block of South Carrollton. Officer Hargrave relocated to that area with Ewing. As the officer approached the area, he observed an African-American male wearing a red San Francisco starter jacket jump over a fence in the 2000 block of South Carrollton. The officer exited the vehicle and attempted to pursue the subject. Once the subject jumped the fence, the officer returned to his vehicle and drove to the intersection of South Carrollton and Apricot to block off an escape route. Several other police units arrived to assist in blocking the area. A canine unit was also requested. A yard by yard search of the area was conducted. Tapp was eventually apprehended. At the time Tapp was apprehended, he had discarded the starter jacket. The jacket was found in one of the yards searched. Ewing made a positive identification of Tapp as the perpetrator after his apprehension. Officer Hargrave identified Tapp in court as the person he saw jumping over the fence.

Nicole Johnson and her boyfriend, Derwin Sylvester, were walking home from the Carrollton Shopping Center on the evening of 2 April 1994. They were walking on South Carrollton towards Claiborne Avenue when a subject approached them with a gun and told them to give him their money. Johnson and Sylvester gave the subject their money, totaling $102.00. The subject told them to walk down Pritchard Place. The subject then ran the other way. The couple flagged down a police officer and informed him of the robbery. The couple saw the perpetrator again at the scene of the incident when the officer took the couple back to the scene to complete the report of the incident. The couple informed the officer that the subject was the person who robbed them. The officer attempted to apprehend the subject. The subject drew a gun on the officer and started running. The officer...