Opinion
NO. 2013-KA-1420
05-28-2014
STATE OF LOUISIANA v. ANTONIO R. BOURGEOIS
Leon A. Cannizzaro, Jr. District Attorney Kyle Daly Assistant District Attorney Parish of Orleans COUNSEL FOR STATE OF LOUISIANA Powell W. Miller LOUISIANA APPELLATE PROJECT COUNSEL FOR THE DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 510-020, SECTION "A"
Honorable Laurie A. White, Judge
Judge Roland L. Belsome
(Court composed of Judge Max N. Tobias, Jr., Judge Roland L. Belsome, Judge Rosemary Ledet) Leon A. Cannizzaro, Jr.
District Attorney
Kyle Daly
Assistant District Attorney
Parish of Orleans
COUNSEL FOR STATE OF LOUISIANA Powell W. Miller
LOUISIANA APPELLATE PROJECT
COUNSEL FOR THE DEFENDANT/APPELLANT
AFFIRMED
On December 29, 2011, Antonio Bourgeois ("the defendant") and Kenneth Barnes ("Barnes") were each charged by bill of information with one count of armed robbery with a firearm, in violation of La. R.S. 14:64.3. The bill of information provides that the defendant and Barnes, while armed with a firearm, robbed Gabriel Goldstein of a wallet, and/or keys, and/or a cell phone on November 6, 2011. Both the defendant and Barnes appeared for arraignment on January 13, 2012, and entered into pleas of not guilty.
The defendant and Barnes subsequently filed several pre-trial motions, including a motion to suppress identification, a motion to suppress evidence, as well as a motion for preliminary hearing. On April 24, 2012, the trial court denied the motions to suppress and found probable cause to substantiate the charges.
The hearing appears to have been conducted over two days. The motions began on April 20, 2012, and concluded on April 24, 2012.
The State amended the bill of information on August 13, 2012, to add American Spirit cigarettes and U.S. currency to the list of items the defendant and Barnes allegedly robbed from Goldstein. Both parties pled not guilty to the amended charges on the same date. However, on August 20, 2012, Barnes withdrew his plea of not guilty and entered into a guilty plea to the charge of attempted armed robbery with a firearm in exchange for nine years at hard labor without benefit of probation, parole, or suspension of sentence.
The State amended the bill of information with respect to Barnes and charged him with attempted armed robbery in open court prior to Barnes' guilty plea.
The defendant's first trial resulted in a hung jury. The second time the case went to a jury trial, the jury unanimously found the defendant guilty as charged.
The jury was selected on June 10, 2013, but the trial was continued and recommenced the following day.
Subsequently, the defendant moved for new trial and a post-verdict judgment of acquittal, both of which the trial court denied. After the defendant waived the twenty-four hour delay for sentencing, the trial judge sentenced the defendant to forty-five years at hard labor, to run concurrently with any and all sentences. The trial court also imposed an additional five year sentence pursuant to La. R.S. 14:64.3, to run consecutively, without benefit of probation, parole, or suspension of sentence, and assessed the defendant $276.50 for felony court costs.
There is discrepancy in the record regarding the defendant's sentence. The minute entry indicates that the trial court imposed a fifty year sentence and an additional five years for using a firearm to commit the robbery; however, the transcript states that trial court sentenced the defendant to forty-five years with the additional five consecutive year penalty. Whenever there is a discrepancy between the transcript and a minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983); State v. Randall, 2010-1027, p. 3 (La. App. 4 Cir. 6/22/11), 69 So.3d 683, 685, writ denied, 2011-1560 (La. 1/13/12), 77 So.3d 952.
La. R.S. 14:64.3(A) provides that when "the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence," which "shall be served consecutively."
The defendant was also given credit for time served.
The defendant filed a motion to reconsider sentence, which was denied. This appeal followed. ERRORS PATENT
A review of the record reveals no errors patent. DISCUSSION
As his sole assignment of error, the defendant contends that there is insufficient evidence to support his conviction for armed robbery with a firearm. Specifically, the defendant argues that the State failed to prove beyond a reasonable doubt that he committed the offense because the testimony of the victim, Mr. Goldstein, is contradicted by the physical evidence.
In his appeal brief, the defendant argues that is insufficient evidence to convict him of armed robbery. However, the bill of information and the docket entries provide that the defendant was charged with armed robbery with a firearm.
This Court in State v. McMillian, 2010-0812, pp. 5-8 (La. App. 4 Cir. 5/18/11), 65 So.3d 801, 804-805, stated the standard for reviewing convictions for sufficiency of the evidence as follows:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Green, 588 So.2d 757 (La. App. 4 Cir. 1991).
The Fourth Circuit in State v. Sparkman, 2008-0472, pp. 6-7 (La. App. 4 Cir. 1/28/09), 5 So.3d 891, 895, noted that the Jackson standard is legislatively embodied in La. C.Cr.P. art. 821(B) which provides that a "post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty."
In this case, the defendant was charged with armed robbery with a firearm in violation of La. R.S. 14:64.3. In order to prove armed robbery with a firearm, the State must prove beyond a reasonable doubt that the defendant took "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," and that "the dangerous weapon used in the commission of the crime of armed robbery is a firearm." See, La. R.S. 14:64(A); La. R.S. 14:64.3(A).
The defendant does not argue on appeal that the State failed proved the statutory elements of the offense; rather, the defendant claims that the State failed to prove his identity as the perpetrator.
When the key issue is the defendant's identity as the perpetrator, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. This is because appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion.
State v. Hughes, 2005-0992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (citing State v. Weary, 2003-3067 (La. 4/24/06), 931 So.2d 297).
Hughes, 2005-0992, p. 6, 943 So.2d at 1051 (citing Weary, 2003-3067 at p. 18, 931 So.2d at 311).
State v. Dorsey, 2010-0216, p. 43 (La. 9/7/11), 74 So.3d 603, 633-634 (citing State v. Davis, 2002-1043, p. 3 (La. 6/27/03), 848 So.2d 557, 559).
Dorsey, 2010-0216, pp. 43-44 (La. 9/7/11), 74 So.3d at 634 (citing State v. Robinson, 2002-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79, cert denied, --U.S.--, 132 S. Ct. 1859 (2012)).
Further, this Court also reviews the reliability of an identification in accordance with the factors set out Manson v. Brathwaite, which are: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation.
432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.2d 140 (1977).
Here, the record shows that Mr. Goldstein had the opportunity to observe the defendant prior to the robbery. Mr. Goldstein testified that when he noticed the defendant standing in close proximity, he greeted and made eye contact with the defendant to assess the situation. He stated that during this time he was able to observe the defendant's face directly. Mr. Goldstein further explained that he was able to see the defendant because the light on his house and the nearby streetlights illuminated the area. He also estimated that the defendant was standing four to five feet away at the time of the incident. Mr. Goldstein testified that he later observed a handgun in the defendant's hand. The defendant then demanded Mr. Goldstein not to look at his face but to empty his pockets. He complied with the defendant's instructions and did not look at him during the commission of the robbery.
After the robbery, Mr. Goldstein described the defendant to the police as a light skinned black male with short hair. The defendant's booking photograph appears to confirm the description given by Mr. Goldstein. Further, Mr. Goldstein was able to immediately recognize the defendant as the armed perpetrator and identified him as such in the one-on-one show-up identification procedure conducted an hour after the incident. Det. DeSalvo's testimony corroborates this fact, as he stated that Mr. Goldstein identified the defendant within one minute. Moreover, Mr. Goldstein stated that he was one hundred percent certain that the defendant was the individual who robbed him.
See, State v. Haynes, 2002-1648, p.4 (La. App. 4 Cir. 4/30/03), 847 So. 2d 653, 656 (noting that while one-on-one confrontations between the suspect and the victim are not favored, they are generally permissible when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for an on-the-spot identification because such prompt confrontations assures reliability and fosters prompt release of innocent suspects).
Although he was confident about the identity of the defendant, Mr. Goldstein refused to identify Barnes as the other perpetrator even though he matched the description (darker skin than the armed perpetrator, dread-locks) he gave to the police officers earlier because he was unable to clearly observe Barnes' face and was not absolutely sure. Mr. Goldstein also identified the defendant in open court as the armed robber. Because Mr. Goldstein was able to observe the defendant before the robbery, was able to identify the defendant a short time after the incident, and demonstrated a high level of certainty that he knew and positively identified the defendant as the armed perpetrator, a rational trier of fact could find Mr. Goldstein's identification of the defendant credible.
The defendant nevertheless suggests Mr. Goldstein's identification was unreliable because he failed to notice the tattoo between the defendant's eyes and the tattoo on his hand. However, at trial Mr. Goldstein stated that while he did not specifically observe a tattoo on the defendant's face, he did observe a "dark mark" between the defendant's eyebrows on the night of the incident, but believed it was hair. He further indicated that the defendant's appearance at trial was compatible with how he appeared the night of the robbery, noting again from the witness stand that the tattoo "looks like when somebody has not a full unibrow, but has hair between their eyebrows." With regard to the failure to observe hand tattoos, Mr. Goldstein explained that his attention was more focused on the gun than on the defendant's hands, and he was able to accurately describe the handgun. Again, it is within the province of the jury to assess the credibility of Mr. Goldstein's testimony.
The defendant also takes issue with the fact that Mr. Goldstein described the defendant as wearing a blue hoodie, because the arresting officers, when presented with the clothing worn by the defendant that night, acknowledged that the color of the hoodie was not blue. However, a review of the trial transcript does not indicate that the description is necessarily conflicting. At trial, Mr. Goldstein, Det. Banks, and Det. DeSalvo stated that the suspects were wearing dark clothing on the night of the robbery. In fact, after detaining the defendant, Det. DeSalvo informed dispatch that the defendant was wearing a navy blue hooded sweatshirt. Although Det. DeSalvo later agreed that the sweatshirt was not navy blue, he explained that he may have mistaken the color of the hoodie in the dark.
Lastly, the defendant claims that the only physical evidence to corroborate Mr. Goldstein's identification is two unopened packs of American Spirits allegedly recovered from the defendant. He points out that Barnes testified he had given the defendant the cigarettes after he and another individual had robbed the victim. Barnes also testified that the defendant was not present during the robbery. Barnes did admit that he and the defendant were longtime friends. The jury also heard a recording of Barnes which contradicted his earlier testimony and indicated that he and the defendant were going to stick to the same story. Moreover, the arresting officers testified that the defendant and Barnes immediately fled when the officers attempted to stop the suspects. In the process, Barnes dropped a handgun, which matched the description given by Mr. Goldstein.
Besides finding the same brand of cigarettes stolen from Mr. Goldstein on the defendant, the officers recovered from Barnes the same amount of cash that had been in Mr. Goldstein's wallet. The officers later located the wallet and its contents near where they had initially observed the defendant and Barnes and about one mile from where the robbery occurred. The jury was entitled to reject Barnes' statements in favor of the officers' and Mr. Goldstein's testimony of the events.
The defendant also claims that the Central Evidence and Property receipt, which indicates that the cigarettes were recovered from the defendant hours after the robbery at Central Lock-up, demonstrates the lack of evidence connecting the defendant to the robbery. However, Det. Banks indicated that it was likely a clerical error because most of the items listed in evidence were collected at Central Lock-up. Moreover, both arresting officers testified that the unopened American Spirits packs were confiscated from the defendant's possession at the time he was apprehended. In fact, Det. DeSalvo specifically testified that he was positive he had recovered the cigarettes from the defendant on the scene prior to taking him to Central Lock-up. Det. DeSalvo also stated that Mr. Goldstein identified the packs of cigarettes recovered from the defendant's sweatshirt as two of the stolen items, further suggesting that cigarettes were seized on the scene. Based upon evidence presented to the jury in this case, we cannot say that the jury abused its discretion by accepting the officers' testimony.
Further, even assuming there was no physical evidence connecting the defendant to the robbery, this Court has observed "[w]hile there [is] no physical evidence to link the defendant to the crime, the testimony of one witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion." As noted earlier, Mr. Goldstein positively identified the defendant as the armed perpetrator shortly after the robbery and at trial. The minor discrepancies mentioned by the defendant do not appear to amount to an irreconcilable conflict such that it would warrant this Court to disturb the jury's factual findings.
State v. Everett, 2011-0714, p. 19 (La. App. 4 Cir. 6/13/12), 96 So. 3d 605, 622, writ denied, 2012-1593, 2012-1610 (La. 2/8/13), 108 So.3d 77 (quoting State v. Marshall, 99-2176, p. 12 (La. App. 4 Cir. 8/30/00), 774 So.2d 244, 252).
--------
Viewing the evidence under the Jackson standard, it appears that a rational trier a fact could have found that the defendant was the individual who robbed Mr. Goldstein with a firearm on the night of November 6, 2011. Accordingly, the defendant's conviction and sentence are affirmed.