State v. Zeno

• Decision Date: 31 August 1999
• Docket Number: No. 99-KA-69.,99-KA-69.
• Citation: 742 So.2d 699
• Parties: STATE of Louisiana v. Shannon J. ZENO.
• Court: Court of Appeal of Louisiana — District of US

742 So.2d 699

STATE of Louisiana v. Shannon J. ZENO.

No. 99-KA-69.

Court of Appeal of Louisiana, Fifth Circuit.

August 31, 1999.

Katherine M. Franks, Louisiana Appellate Project, Baton Rouge, Louisiana, Attorney for Appellant, Shannon J. Zeno.

Paul D. Connick, Jr., District Attorney, Ellen S. Fantaci, Terry M. Boudreaux, Joseph E. Roberts, Dominick Tamburo, Assistant District Attorneys, Twenty-fourth Judicial District Court, Gretna, Louisiana, Attorneys for Appellee, State of Louisiana.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.

CHEHARDY, Judge.

STATEMENT OF THE CASE

On April 3, 1998, defendant, Shannon Zeno, and three co-defendants, Jermal Anderson, Noel Knight, and Keith Sterling, were charged by bill of information with conspiracy to commit armed robbery (Count 1), in violation of La. R.S. 14:26 and 64; and armed robbery (Count 2), in violation of La. R.S. 14:64.¹ Defendant pled not guilty.

On July 20-22, 1998, defendant was tried by a jury of twelve persons, which found defendant guilty as charged on both counts. On July 27, 1998, the trial court denied defendant's motions for post verdict judgment of acquittal and new trial. After defendant waived delays, the trial court sentenced defendant on the conspiracy conviction to serve forty-nine years and six months at hard labor without benefit of parole, probation, or suspension of sentence. For the armed robbery conviction, the trial court sentenced defendant to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence, and further ordered the sentences to run consecutively with each other and with any other sentence defendant may be serving.

On July 27, 1998, the state filed an habitual offender bill of information, alleging defendant to be a third felony offender, and defendant denied the allegations. After a hearing on August 13, 1998, the trial court found defendant to be a third felony offender, vacated the armed robbery conviction, and imposed a life sentence without benefit of parole, probation or suspension of sentence to run consecutively with defendant's conspiracy sentence. Defendant timely appealed.

FACTS

On February 14, 1998, at approximately 11:00 p.m., two men committed armed robbery at Wholesale Direct of Louisiana, a business in Jefferson Parish. Approximately $8,000.00 in cash and $1,000.00 in checks was stolen, as well as a diamond ring valued at $3,000.00. At the time of the armed robbery, most of the employees had left for the day. The owner of the business, Juanita Scroggin, and one of her employees, Francis Klein, were reconciling accounts. Two other employees, Noel Knight and Jermal Anderson, arrived at the business while the ladies were finishing the accounts.

Ms. Scroggin testified at trial that she asked Knight and Anderson to lock up the business. Ms. Scroggin went into her office, and as she reached for her keys on her desk, she was struck in the back so hard that she hit the wall, fell over her desk and slumped into her chair. She looked up and saw a man dressed in black wearing a ski mask and gloves. The man thrust a sawed-off rifle into her and told her to give him the "f* * *ing money," or he would blow her head off. When Ms. Scroggin attempted to comply, the man grabbed her by the hair and pulled her across the desk. As Ms. Scroggin attempted to gain her balance, she noticed Ms. Klein standing in the doorway with her hands over her face, which was covered in blood. The second man, who was also dressed in black and wearing a ski mask, shoved Ms. Klein into Ms. Scroggin, and then went across the hall.²

The man with the rifle ordered the women to get to the floor and then taped the two women together, facing each other, with duct tape. Ms. Scroggin testified that Ms. Klein was bleeding profusely and was making "gurgling" sounds, as if she was having difficulty breathing. While the gunman taped their hands behind their backs, Ms. Scroggin tried to twist her diamond ring around her finger and close her hand so as to conceal the diamond. The gunman told her to open her hand or he would cut her finger off to get her ring. When she opened her hand, the gunman took her ring.

After taping Ms. Scroggin and Ms. Klein together, the gunman rummaged through Ms. Scroggin's desk searching for money. When the gunman saw Ms. Scroggin watching him, he told her to put her head down or he would blow her head off. The gunman then demanded to know where the rest of the money was kept. When Ms. Scroggin did not answer, one of the two men said: "Get the briefcase. Where's the briefcase?" At that point, the phone started ringing and the gunman ripped the cord from the wall, put the gun to Ms. Scroggin's head, and threatened to kill her if she did not tell him where the rest of the money was.³

The gunman eventually left the room, turning the lights off and locking the door. Ms. Scroggin and Ms. Klein lay taped together on the floor waiting for help. Eventually, the women were freed by Noel Knight, who said that he had also been taped, but managed to free himself by cutting through the tape with his ring. Ms. Scroggin testified that Knight and Anderson said that they had been held in the office of another employee, Mike Swenson. Ms. Scroggin further testified that it was common knowledge among the employees that Mike Swenson kept the business money in a maroon briefcase.

After being freed, Ms. Scroggin called the police. Deputy Stacy Poche was the first officer on the scene. Deputy Poche testified that Ms. Klein had been hit in the face so hard that some of her teeth had been knocked out and some were still dangling in her mouth. Deputy Poche also testified that she overheard Jermal Anderson, one of the alleged victims, say to Noel Knight, the other alleged victim: "I can't believe they hit me."

Lieutenant Norman Schultz also responded to the scene that night. Lieutenant Schultz testified at trial that Anderson's comment to Knight raised a suspicion that Anderson and Knight may have had some involvement in the robbery. While Anderson initially denied prior knowledge of the robbery, he later admitted in a statement to the police that Knight brought up the idea of committing a robbery at Wholesale Direct during a recent trip to Baton Rouge with Anderson and his cousin, Keith Sterling. Anderson also told the police that he recognized the voice of the gunman as that of defendant, Shannon Zeno.

A few days after the armed robbery, the police discovered a sawed-off rifle, a black jacket, black gloves, a two-way radio, and a black cap on the railroad tracks a few blocks from Wholesale Direct. The rifle was identified by Ms. Scroggin at trial as the one used in the robbery.

Keith Sterling also gave a statement to the police, and confirmed that the armed robbery was discussed on the trip to Baton Rouge a few days earlier. He stated that after returning to his house from Baton Rouge, he and Anderson were discussing the robbery further, and were overheard by defendant, who was dating Sterling's aunt and stayed at the house occasionally. Sterling told the police that defendant asked several questions about the possible robbery, and Sterling told defendant that Wholesale Direct would be an easy place to rob.

On February 18, 1998, a search warrant for the Sterling residence and a warrant for defendant's arrest were obtained. The officers set up a surveillance of the residence to watch for defendant. Detective William Jones testified at trial that the officers followed defendant from the residence in a green Toyota Corrolla. The officers attempted to apprehend defendant, but defendant stopped the vehicle and fled on foot. After securing the vehicle, the officers obtained a warrant to search it, and found $1,945.00 in cash and a handwritten "shopping list." The Sterling residence was also searched. Black clothing, duct tape, and a ring were recovered. Defendant was arrested the following month.

ASSIGNMENT OF ERROR NUMBER ONE

The evidence is insufficient to establish the elements of the offense of conspiracy or to establish beyond a reasonable doubt that Shannon Zeno participated in either the alleged conspiracy to commit the armed robbery of Wholesale Direct or the actual armed robbery of the owner.

DISCUSSION

When an appellate court reviews a claim of insufficient evidence, the relevant inquiry is whether the trial evidence, 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).

Defendant alleges that the evidence was insufficient to support his conspiracy conviction because there was no evidence to show the element of an "agreement." The elements of the crime of conspiracy are: (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, plus (2) an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26.

Specific intent is an essential element of conspiracy. State v. Ellis, 94-599 (La.App. 5 Cir.5/30/95), 657 So.2d 341, 361,writs denied, 95-2095 (La.12/8/95), 664 So.2d 421 and 95-1639 (La.1/5/96), 666 So.2d 300. Specific intent is defined as "... that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). The determination of specific criminal intent is a question of fact and may be inferred from circumstances and actions of the defendant. State v. Armant, 97-1256 (La.App. 5 Cir.5/27/98), 719 So.2d 510, 517,writs denied, 98-1884 (La.11/20/98), 729 So.2d 3 and 98-1909 (La.11/20/98), 729 So.2d 4. Proof of a conspiracy may be made by direct or circumstantial evidence. State v. Ellis, supra.

Keith...