State v. Weaver

• Decision Date: 12 May 2004
• Docket Number: No. 38,322-KA.,38,322-KA.
• Citation: 873 So.2d 909
• Parties: STATE of Louisiana, Appellee v. Dewayne Terrance WEAVER, Appellant.
• Court: Court of Appeal of Louisiana — District of US

873 So.2d 909

STATE of Louisiana, Appellee v. Dewayne Terrance WEAVER, Appellant.

No. 38,322-KA.

Court of Appeal of Louisiana, Second Circuit.

May 12, 2004.

Jacqueline Scott, Bossier City, for Appellant.

Robert W. Levy, District Attorney, Clifford R. Strider, III, Stephen K. Hearn, Jr. Assistant District Attorneys, for Appellee.

Before GASKINS, CARAWAY and MOORE, JJ.

MOORE, J.

The defendant was tried by a jury, convicted of armed robbery and sentenced to serve 15 years imprisonment at hard labor. He now appeals alleging seven assignments of error.¹ For the following reasons, we affirm the defendant's conviction, but vacate the sentence and remand for re-sentencing.

FACTS

Jessica McDonald and her boyfriend, Jeff Sillinger, had just parked outside her apartment at Village Green Apartments in Ruston and had begun unloading items they had purchased from Wal-Mart when Jessica observed a dark-colored Geo drive past them. Moments later, they were approached by three men wearing ski masks and gloves. The men cursed and shouted profanities at the couple while exclaiming this was a robbery and demanded their money. One of the men held a silver revolver against Jessica's head. Among the items taken from the couple were Jessica's purse containing her cell phone, credit cards, keys and some cash and Jeff's wallet. Another assailant took a 12-pack of beer the couple had just purchased from Wal-Mart. The three men then fled.

Jessica reported the robbery to authorities. Although she could not see their faces completely, she was able to identify the assailants as three black males. She also noted that, moments before the robbery, a dark-colored Geo passed slowly by the couple as they got out of her car.

Following an investigation, defendant was arrested after one of the suspects, Kenton Cottingham, implicated him in the robbery. Police investigated Cottingham after he made several phone calls from the victim's stolen cell phone, some of which were traced to his girlfriend. The Geo was traced to Elbonie Washington, defendant's girlfriend, who told police that she had loaned her black Geo Storm to defendant the afternoon of the robbery. Defendant named Cottingham and Olatunji Williams, aka "Baby," as his accomplices.

All three were charged with armed robbery in a single bill of information. Williams subsequently pled guilty to the offense, and Cottingham was acquitted in a jury trial. After a trial by jury, the defendant was convicted as charged for armed robbery. He was sentenced to serve 15 years imprisonment at hard labor. He appeals.

DISCUSSION

Assignment of Error Number Six: The evidence presented by the state was insufficient to support defendant's conviction for Armed Robbery.

The defendant contends that the state failed to prove his identity as a perpetrator of the armed robbery. Jessica McDonald was unable to identify the men who robbed her; her boyfriend, Jeff Sillinger, did not testify. Defendant included within the sufficiency argument other specific errors related to the admissibility of evidence, such as statements obtained by police from Cottingham and the admissibility of defendant's confession, but these are treated elsewhere in this opinion under their specific assignments.

Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider a sufficiency of the evidence argument in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra,

and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64; State v. Long, 36,167 (La.App.2d Cir.10/30/02), 830 So.2d 552.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24.

At trial Jessica McDonald testified that the robbers demanded and took her purse and Jeff Sillinger's wallet while one of the assailants pointed a revolver at her head at close range. Although Ms. McDonald could not see their faces, she was able to discern through openings in the ski masks that the assailants were black males. She also noticed a dark-colored car, which she identified as a Geo, drive slowly by just moments before the robbery. Police subsequently learned that the defendant's girlfriend, Elbonie Washington, owned a black 1991 Geo Storm. Ms. Washington testified at trial that the defendant borrowed her car around 5:00 p.m. on the date of the robbery. When he returned briefly in the car between 7:00 and 8:00 p.m., she asked him what he had been doing, he replied, "It's best that I didn't know."

The revolver used in the robbery was recovered from Cottingham's girlfriend, who was identified after Cottingham made several cell phone calls from Ms. McDonald's stolen cell phone. After the defendant was implicated by Cottingham and brought in for questioning, Lieutenant Darrell Newsom testified that the defendant confessed to the robbery, and an audio tape of the confession was made. The tape of the confession was played for the jury. Trooper First Class Gregory Pleasant was present during the taped confession and testified that the defendant was not coerced into giving a statement.

The jury obviously did not find the testimony of defendant's alibi witnesses to be credible.

Viewing the evidence above in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime of armed robbery proven beyond a reasonable doubt in this instance. Accordingly, this assignment of error is therefore without merit.

Assignment of Error Number Seven: The trial court erred by allowing the State of Louisiana to introduce defendant's statements about the robbery in evidence, including an audiotape, a videotape and a typewritten transcript as well as other statements attributed to the defendant by police officers.

The defendant admits he filed no motion to suppress, but argues that the admission of his inculpatory statements into evidence should be reviewed as part of the "record" for sufficiency of evidence. He asserts that the statements were obtained in violation of his constitutional rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, supra.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Jackson, 381 So.2d 485 (La.1980); State v. Roddy, (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, XXXX-XXXX (La.5/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Roddy, supra; State v. Walker,

28,577 (La.App.2d Cir.10/4/96), 681 So.2d 1023.

The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. State v. Payne, XXXX-XXXX (La.12/4/02), 833 So.2d 927, citing Edwards v. Arizona, supra, 451 U.S. at 485-486, 101 S.Ct. at 1885. In addition, once a suspect in custody expresses a desire, at any stage in the process, to deal with the police only through counsel, all questioning must cease, and the accused may not be subject to further interrogation until counsel has been made available to him, unless he initiates further...