State v. Wilson

• Decision Date: 28 May 2015
• Docket Number: No. 14–KA–878.,14–KA–878.
• Citation: 171 So.3d 356
• Parties: STATE of Louisiana v. Chad WILSON.
• Court: Court of Appeal of Louisiana — District of US

171 So.3d 356

STATE of Louisiana
v.
Chad WILSON.

No. 14–KA–878.

Court of Appeal of Louisiana, Fifth Circuit.

May 28, 2015.

171 So.3d 359

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.

Martin E. Regan, Jr., Attorney at Law, New Orleans, LA, for Defendant/Appellant.

Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.

Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and STEPHEN J. WINDHORST.

Opinion

STEPHEN J. WINDHORST, Judge.

On January 16, 2014, a twelve-person jury found defendant, Chad Wilson, guilty of the lesser included offense of second degree battery (count one) and guilty of armed robbery (count two).¹ Defendant was sentenced to five years imprisonment at hard labor on count one and thirty years imprisonment at hard labor on count two to run concurrently with each other. For the reasons that follow, we affirm defendant's convictions and sentences, and remand for correction of the commitment.

FACTS

On May 31, 2013, the victim, Cory Millet, was sitting in his car listening to music (“beats”) he produced since his two year old daughter was upstairs taking a nap in her bedroom.² Mr. Millet saw defendant pull up and go to the back of the apartment complex. Mr. Millet left his car and went into his apartment, but returned to make sure the car was locked. Mr. Millet saw defendant return to a parked vehicle along with three other individuals. Mr. Millet had never met

defendant. As Mr. Millet was returning to his apartment, he passed defendant getting into his vehicle and defendant asked him if he “smoked” and if he “had a light.” Mr. Millet responded he did not smoke cigarettes, but he did have a lighter. Defendant asked Mr. Millet if he would mind waiting until they rolled a “blunt” in the back of the vehicle.

Defendant then asked Mr. Millet if he knew someone who sold weed. Mr. Millet responded that he did, and defendant asked Mr. Millet for his drug dealer's phone number.³ Mr. Millet told defendant he did not give out other people's phone numbers. Defendant told Mr. Millet he

171 So.3d 360

wanted his number and Mr. Millet gave defendant his own phone number. Defendant called Mr. Millet's phone, and his phone number appeared on Mr. Millet's phone without a contact name.

Defendant also asked Mr. Millet if he knew someone who wanted to buy a gun. Mr. Millet responded some of his “artists” might be interested. Defendant offered to show him a .25 caliber gun, but requested to show it in Mr. Millet's house. Mr. Millet retrieved his .45 caliber gun,⁴ placed it behind his waist, and allowed defendant into his apartment because he thought he was “protected in the neighborhood.”⁵ After defendant showed Mr. Millet the gun, he called “B–Mac”⁶ regarding the potential sale of the gun. While Mr. Millet was on the phone, defendant pointed the .25 caliber gun at him and stated, “you know you're jacked, right?” Mr. Millet asked defendant if he was serious and hung up the phone. Defendant instructed Mr. Millet to remove the clip from his .45 caliber gun, and he complied by ejecting the bullets from the clip onto the stairs. Defendant also

ordered Mr. Millet to remove the round from the chamber, and it fell on the stairs. Defendant took Mr. Millet's .45 caliber gun and tucked it into his waistband.

While defendant was focused on Mr. Millet's dog, Mr. Millet grabbed defendant's gun and jumped on him. Mr. Millet and defendant wrestled for approximately three seconds, during which the defendant shot Mr. Millet in the chest, then ran out. Mr. Millet immediately pressed down on the wound and called 9–1–1. Officers responded within two to three minutes.

Officer Bryan Weiter was the first officer on the scene at 3540 Martinique Drive. Mr. Millet told Officer Weiter he had been shot and his two year old daughter was inside the apartment. Officer Weiter brought Mr. Millet outside and he gave Officer Weiter a description of the shooter. Mr. Millet told him that the shooter asked him for a lighter for a marijuana cigarette, the shooter then said “you just got jacked,” pointed a .25 caliber gun at him and took his .45 caliber gun.

Detective Charlotte Synigal, the lead case officer, testified someone brought her Mr. Millet's two year old daughter, and the child was “really shaken up.” There were live rounds of ammunition on the staircase, and Detective Synigal and the other officers searched the entire house. The officers found a small amount of narcotics in Mr. Millet's residence and did not find any weapons. Detective Synigal testified that Mr. Millet described the shooter as an unknown black male with a long dread-lock hair style and a medium brown complexion. She was informed the shooter fled the scene in a two-tone silver vehicle.

Detective Synigal testified the officers recovered Mr. Millet's cell phone and a .45 caliber magazine from his pocket. She reviewed Mr. Millet's cell phone and discovered Mr. Millet had been contacted from a phone number that was not saved in his contact list. The “ARMS” database

171 So.3d 361

was consulted and she discovered the phone number was associated with defendant. Detective Synigal verified with

other officers that defendant matched the description provided by Mr. Millet. Detective Synigal generated a photographic lineup that included defendant and presented the lineup to Mr. Millet. Detective Synigal testified that Mr. Millet was certain when he chose defendant from the lineup.⁷

After Mr. Millet's identification of defendant, Detective Synigal prepared arrest and search warrants. The officers received information from the “ARMS” database regarding a two-tone silver vehicle associated with defendant. Defendant was arrested during a traffic stop in St. John the Baptist Parish and was transported to the jail in that parish where Detective Synigal made contact with defendant later that night. She advised defendant of his rights, and defendant signed a waiver of rights form. Defendant subsequently provided a statement wherein he denied any knowledge of the shooting.

Detective Synigal testified she also requested defendant's phone calls made on June 2, 2013, from the jail. After listening to the jailhouse telephone recordings, she contacted the jail to have defendant's phone call privileges suspended for Mr. Millet's safety.

DISCUSSION

In defendant's first counseled supplemental assignment of error,⁸ defendant argues that the evidence was insufficient to prove he committed an armed robbery or second degree battery.⁹

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal, 00–0674 (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). Under the Jackson standard, a review of a criminal conviction for sufficiency of evidence does not require the court to ask

171 So.3d 362

whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Alexander, 12–836 (La.App. 5 Cir. 5/23/13), 119 So.3d 698, 702, writ denied, 13–1981 (La.3/21/14), 135 So.3d 614 (citing State v. Flores, 10–651 (La.App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122 ).

To support a conviction of armed robbery under La. R.S. 14:64, the State must prove beyond a reasonable doubt (1) the taking (2) of anything of value (3) belonging to another from the person of another or that is in the immediate control of another, (4) by use of force or intimidation (5) while armed with a dangerous weapon. State v. Preston, 09–856 (La.App. 5 Cir. 5/25/10), 40 So.3d 1052, 1058, writ denied, 10–1492 (La.1/14/11), 52 So.3d 900. Property that is taken is considered under the victim's control when the victim could have prevented the taking had he not been subjected to the robber's violence or intimidation. State v. Martin, 07–1035 (La.App. 5 Cir. 10/28/08), 996 So.2d 1157, 1160. The State need not prove that the property taken was owned by the victim but only that the

accused was not the owner, and the victim had a greater right to the item than the accused. Id.

Defendant argues that he denied taking Mr. Millet's gun and the stolen property was never found in defendant's possession,¹⁰ and that he presented a reasonable alternative hypothesis of innocence, and thus, the State did not have sufficient evidence to support his conviction for armed robbery. In essence, he claims that the case against him was circumstantial.

Defendant's conviction for armed robbery was supported by sufficient evidence, although Mr. Millet's gun was never found. Although defendant argues that the circumstantial evidence was not...