Opinion
NO. 2014 KA 1412
03-06-2015
STATE OF LOUISIANA v. WALTER DOMINIQUE FAIRLEY
WALTER P. REED DISTRICT ATTORNEY COVINGTON, LA AND KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA PRENTICE L. WHITE BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLANT WALTER DOMINIQUE FAIRLEY
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana
Trial Court No. 543474
Honorable August J. Hand, Judge
WALTER P. REED
DISTRICT ATTORNEY
COVINGTON, LA
AND
KATHRYN LANDRY
SPECIAL APPEALS COUNSEL
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
PRENTICE L. WHITE
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
WALTER DOMINIQUE FAIRLEY
BEFORE: PETTIGREW, WELCH, AND CHUTZ, 33 . PETTIGREW, J.
The defendant, Walter Dominique Fairley, was charged by bill of information with armed robbery (with a firearm) a violation of La. R.S. 14:64. See La. R.S. 14:64.3. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The defendant was sentenced to forty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. For the additional penalty under La. R.S. 14:64.3, the defendant was sentenced to five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court ordered the five-year additional penalty to be served consecutively to the forty-year sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentences.
FACTS
On November 4, 2013, the defendant entered Regions Bank on Gause Boulevard in Slidell. He approached teller Melissa Gerstner and handed her a note. The note instructed the teller to give him cash, to act normal, and not to set off any alarms. The last line of the note indicated the defendant was carrying a gun. The defendant did not show Melissa a gun, and she did not see a gun. She gave the defendant $1,978 in cash. Contained within the stack of cash was a dye pack. When the defendant left the bank with the money, the dye pack detonated. The defendant dropped the stained stack of money and fled in his GMC pickup truck. The police were immediately informed of the bank robbery; and within minutes, the defendant was stopped on the 1-12 interstate on-ramp. The defendant was patted down, and was found to be carrying a handgun in his waistband. Melissa was brought to the scene, and she identified the defendant as the person who had just robbed her. The defendant was taken to the Slidell Police Department, where he was interviewed, and admitted to the robbery. Bank cameras captured several photographic stills of the defendant robbing Melissa. The defendant had on a blue long-sleeve dress shirt and a Saints cap. The police found the blue shirt and the Saints cap in the defendant's truck.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the evidence was insufficient to support the armed robbery conviction. Specifically, the defendant contends the State failed to prove that he was armed with a firearm during the robbery.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art, I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585, p. 5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144. 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(A).
In his brief, the defendant does not deny that he robbed Melissa at the bank. His sole contention is that the State failed to prove he was armed with a dangerous weapon, specifically a handgun, at the time of the robbery. The defendant correctly notes that he did not produce or reveal a firearm when he robbed Melissa. The defendant suggests that the handgun was only in his vehicle; and as such, since he was unarmed, the jury was compelled to find him not guilty or guilty of a responsive verdict.
The defendant's argument is groundless. No weapon need ever be seen by the victim, or witnesses, or recovered by the police for the trier of fact to be justified in finding that the defendant was armed with a dangerous weapon. State v. Phillips, 2013-154, pp. 7-8 (La. App, 5 Cir. 12/12/13), 130 So.3d 416, 421, writ denied, 2014-0147 (La. 9/26/14), 149 So.3d 257. Moreover, there was ample evidence to find the defendant was armed when he entered the bank and robbed Melissa. Melissa testified the defendant handed her a note when he approached her. Melissa stated she read the note, and then dropped it to the floor, per the bank's protocol if a teller is robbed. Detective Shawn Bartley, with the Slidell Police Department, testified he found the note on the bank floor and secured it. The note, which was introduced into evidence, stated:
This is simple...cooperate and live. Don't and die. I've studied you and your family...No tricks - no alarms - act normal give me the cash - you won't get shot and I will leave. If they catch me before I leave the premises your family is done. After I'm gone stay calm approach your manager and tell them. If I pull this gun your [sic] shot!
During her testimony, Melissa was specifically asked to read the last line of the note. She stated, "If I pull this gun, you are shot" The following exchange between the prosecutor and Melissa then took place:
Q. You didn't ask him to do that, did you?
A. No. No, sir.
Q. You tend to believe, if someone says they pull their gun and you get shot, that's probably not a good thing to do, right?
A. I tend to believe them, yes.
Detective Jeff Theriot, with the Slidell Police Department, testified that he was the lead detective and that he interviewed the defendant. Detective Theriot indicated the defendant admitted to him that he robbed Melissa and that he had a gun in his truck, but he did not bring the gun into the bank with him. The detective testified the defendant stated during his interview that as the teller "stretched things out" and was not being totally compliant, he grabbed his clothing near his waist, "[r]eferencing as if he were to have a firearm." According to the defendant, this action (of grabbing) was so overt that he was actually worried that other customers in the bank would realize what was going on. Detective Theriot was shown still photographs of the robbery taken from the bank cameras. The detective indicated that the defendant, during the robbery, had both of his shirts - his blue shirt and the T-shirt underneath - untucked.
The defendant was stopped by the police only minutes after the robbery. When Officer Steven Gilley, with the Slidell Police Department, searched the defendant, he found a handgun in the defendant's front waistband. The gun had live ammunition in the cylinder.
It is unclear why no one at trial testified as to the type of gun Officer Gilley found on the defendant. At a pretrial motion to suppress the statement, the gun was identified as a .22 caliber pistol.
Based on the foregoing, the jury could have reasonably concluded that the defendant was armed with a loaded handgun while he robbed Melissa, despite the fact that Melissa did not see the gun during the robbery. The defendant handed Melissa a note informing her that he was armed and would shoot her if she did not comply with his demands. Melissa made clear in her testimony that she believed the defendant was armed. As mentioned, simply because the victim did not see a dangerous weapon does not preclude an armed robbery conviction. When a defendant creates an atmosphere of intimidation prompting the victim to react reasonably with fear for his life, an armed robbery conviction is justified. State v. Cotton, 94-384, p. 3 (La. App. 5 Cir. 11/16/94), 646 So.2d 1144, 1146. See State v. Talbert, 416 So.2d 68 (La. 1982) (wherein the Louisiana Supreme Court upheld the defendant's armed robbery conviction even though the victim never saw a weapon); State v. Ellis, 95-1005 (La. App. 5 Cir. 3/26/96), 672 So.2d 1007 (where evidence that the defendant stood in front of the store counter, placed his hand in his right front pocket, threatened to let the victim "have it," and that a police officer subsequently found a pocket knife in the defendant's right front pocket was sufficient to establish the defendant was armed with a pocket knife, so as to support his conviction for armed robbery, despite the fact the defendant did not brandish a knife during the robbery).
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So,2d 78, 83. The fact that the record may contain evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. See State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980, p. 6 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1 Cir. 1987), writ denied, 519 So.2d 113 (La. 1988).
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury heard all of the testimony and viewed the documentary evidence presented to it at trial and found the defendant guilty as charged. The jury's verdict reflected the reasonable conclusion that based on the evidence, the defendant entered Regions Bank while armed with a handgun and robbed teller Melissa Gerstner. In finding the defendant guilty, the jury clearly rejected the defense's hypothesis that the defendant, upon being stopped in his truck by the police following the robbery, armed himself with his gun, rather than having had the gun in his waistband from the time he left the bank until he was stopped and searched. Neither the defendant nor any defense witness testified at trial.
After a thorough review of the record, we find that the evidence supports the jury's guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery while armed with a firearm. See State v. Calloway, 2007-2306, pp. 1-2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
The assignment of error is without merit. CONVICTION AND SENTENCES AFFIRMED.