Opinion
NO. 19-KA-379
01-29-2020
STATE of Louisiana v. Maurice HONOR
Ricky L. Babin, Lindsey D. Manda, Donald D. Candell, Counsel for Plaintiff/Appellee, State of Louisiana. Cynthia K. Meyer, Counsel for Defendant/Appellant, Maurice Honor.
Ricky L. Babin, Lindsey D. Manda, Donald D. Candell, Counsel for Plaintiff/Appellee, State of Louisiana.
Cynthia K. Meyer, Counsel for Defendant/Appellant, Maurice Honor.
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
CHEHARDY, C.J.
On appeal, Maurice Honor challenges his conviction for first degree robbery and sentence of forty years at hard labor without benefit of parole, probation, or suspension of sentence. For the following reasons, we affirm his conviction and sentence but remand for correction of the commitment.
Procedural History
On February 17, 2016, the St. James Parish District Attorney filed a bill of information charging Maurice Honor with armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3. On March 14, 2016, Honor pled not guilty at his arraignment. On October 10, 2017, the State dismissed the charge enhancing the sentence for use of a firearm and amended the charge of armed robbery to first degree robbery, a violation of La. R.S. 14:64.1. The State later arraigned Honor on the amended charge, and he pled not guilty.
On May 15, 2018, trial before a twelve person jury commenced. At the close of the three-day trial, following the State's rebuttal during closing arguments, Honor made an oral motion for mistrial, which the trial judge denied. On May 17, 2018, the jury unanimously found Honor guilty as charged.
On October 9, 2018, after considering the presentence investigation report, the trial court sentenced Honor to forty years at hard labor without benefit of parole, probation, or suspension of sentence. On November 19, 2018, Honor timely filed a motion for appeal, which the trial judge granted on November 21, 2018.
Facts
At approximately 6:00 a.m. on January 17, 2016, Keyania Keyes, the manager of Big River Food & Fuel in Gramercy, was opening the store for the day when a white female came inside and asked where the restroom was located. Keyes observed that the female must have arrived in a white sedan, which was parked near the gasoline pumps. Keyes remembered that the woman left the store right after leaving the restroom.
Very soon after the woman exited, Keyes heard the front door chime again, and, as Keyes exited her office to greet the customer, a male "came straight at" her. She described the man as having a deep voice and wearing a dark jacket with a hood, dark pants, dark-colored gloves, and a black mask over his face. He also held a gun in his hand. Keyes tried to retreat, but he grabbed the front of the shirt and pointed the gun in her face. The assailant pulled Keyes to the cash register, demanded that she open the register, and ordered her not to press the store's silent alarm. As the assailant emptied the register, he began asking about the store's safe but Keyes told him that she could not open the safe. At that point, Keyes saw flashing police lights out of the corner of her eye.
By chance, Lieutenant Tyrone Lafargue with the St. James Parish Sheriff's Office (hereinafter "SJPSO") drove by the store that morning on his routine patrol. When he entered the parking lot, Lieutenant Lafargue was able to see into the store and observed the suspect, who wore a hoodie and kept his hands near his waist as if trying to conceal something, run out of the store in a crouch. Lieutenant Lafargue was immediately suspicious and attempted to drive after the suspect but lost sight of him so Lafargue went inside the store to check on Keyes, who he found "crying" and "traumatized." Keyes reported to Lieutenant Lafargue that she had been robbed at gunpoint by a person wearing a black ski mask and a hoodie, and relayed the details of the white female coming in to use the restroom right before the robbery. Keyes additionally was able to describe an older-model, white Crown Victoria sedan as the vehicle driven by the woman who had entered the store a short time before the robbery.
Lead Detective Juliette Scioneaux and Detective Monica Credidio arrived to Big River gas station to meet with Keyes, who was still visibly shaken, and to take her statement. In her statement, Keyes described the suspect as wearing a black mask and a black hoodie. When Detective Scioneaux watched the surveillance video, she noticed there was something on the mask around the mouth area. She also was able to observe the gun, which appeared to be some kind of semiautomatic weapon.
Lieutenant Lafargue left to search for the suspect when he observed a white female driving an older-model, white Crown Victoria. Lieutenant Lafargue became suspicious when the white female refused to make eye contact with him and drove at a suspiciously slow speed. Lieutenant Lafargue returned to the Big River store, watched the surveillance video, and recognized the woman and the white Crown Victoria that he had observed. He reported the incident and a description of the vehicle to SJPSO officers.
Based on Lieutenant Lafargue's description, SJPSO officers stopped the driver of the vehicle that had been at the convenience store immediately before the robbery, identified that driver as Renee Shrake, and advised her of her Miranda rights. Upon further questioning, Shrake provided the name of the suspect, Maurice Honor, who was her boyfriend at the time.
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Meanwhile, SJPSO officers continued patrolling the area looking for Honor. During his search, Detective Derick Washington of SJPSO stopped at another convenience store located approximately half a mile from the Big River store. While there, Detective Washington received two separate reports that a black male wearing only a white undershirt and jogging pants had been roaming around in the parking lot that morning. Further, the store's cashier asked Detective Washington to conduct a welfare check on the elderly man living in the house adjacent to the convenience store because the cashier could not reach him by telephone after repeated tries. During the welfare check, Detective Washington performed a perimeter search of the residence and discovered a dark hoodie; a black, gray, and green knitted ski hat with a ball on top; and a black pistol underneath the edge of the elevated house. Detective Washington moved the objects for officer safety. The homeowner, who was located at his residence, denied ownership of the items. Detectives Scioneaux and Credidio received word from Detective Washington that items had been discovered under the house and went to the scene to recover the evidence. Upon seeing the mask and gun, Detective Scioneaux believed they were likely the same mask and gun portrayed in the surveillance video from the Big River store. Detective Credidio recovered the hoodie, the ski mask, and the BB gun as evidence.
Later, SJPSO officers obtained an arrest warrant for Honor and Shrake, and after their arrests, police obtained their DNA. Detective Credidio testified that she swabbed the ski mask, and the trigger and handle of the BB gun, and sent the swabs for processing by the Louisiana State Police Crime Laboratory. SJPSO officers also obtained a search warrant for Shrake's Crown Victoria and recovered a black TracFone.
Tammy Rash, a forensic analyst with the Louisiana State Police Crime Lab, was accepted as an expert in the field of forensic DNA analysis. Rash analyzed the DNA of Honor and Shrake and compared their profiles to the DNA found on the trigger and handle of the BB gun and on the mask. Rash provided that Honor's DNA could not be excluded as being present on the mask, and a mixture containing Honor's and Shrake's DNA was found on the trigger of the BB gun. Finally, Honor's DNA could not be excluded as being present on the handle of the BB gun. Additionally, there was other DNA present on the handle at such a low concentration that a valid DNA profile could not be obtained.
At trial, Shrake stated that she pled guilty to conspiracy to commit first degree robbery, in violation of La. R.S. 14:26 and La. R.S. 14:64.1, for her involvement and promised to testify truthfully as part of her plea agreement. Shrake provided that at approximately 6:00 p.m. the day before the robbery, Honor called her, so she drove to his house in Boutte in her white Crown Victoria. They then drove to the Treasure Chest casino, and after they left the casino, Honor was driving her car, and she fell asleep.
When she woke up, they were in Thibodeaux parked across from a gas station, and Honor told her he intended to commit a robbery. Shrake told Honor not to, and in response, Honor pulled her hair, put a gun in her face, and threatened to kill her parents and daughter. The gas station was busy, however, so Honor drove them to the Big River gas station in Gramercy. Honor pulled up, exited the vehicle, and told Shrake to go inside and look around. Shrake complied, and when she came back outside, Honor told her to drive around to the car wash located behind the gas station. At that point, Honor put on a black hoodie, put on the "kind of black and white and green color" mask with "a ball on top," and went inside the store. Shrake was able to see Honor run out of the gas station and into a residential area. At that point, she left in her vehicle and was eventually pulled over by the police.
Shrake admitted at trial that she initially lied to the officers because she was afraid and was protecting Honor. As to her interview, Shrake admitted that she gave the detectives some untruthful information because she was scared, traumatized, and was still trying to "cover for" Honor at that point. She maintained that her trial testimony was truthful to the best of her recollection and that she pled guilty to conspiracy to commit first degree robbery because she was, in fact, guilty.
At the end of trial, the twelve-person jury unanimously found Honor guilty as charged of first degree robbery. This appeal follows. Law and Argument
On appeal, Honor raises three assignments of error: first, he argues that the evidence is insufficient to support the verdict of first degree robbery; second, he argues that the State's closing argument was improper and the trial court erred in failing to grant appellant's motion for mistrial, and, finally, he argues that the sentence imposed is excessive.
Sufficiency
In his first assignment of error, Honor argues that the evidence was insufficient to support the verdict of first degree robbery because the State failed to prove his identity as perpetrator of the crime. Specifically, he argues that the "evidence log, documenting the evidence collected in this case, does not list a swab of the hat." He also implies that the identification is deficient because Keyes repeatedly described her assailant as wearing a "black mask," which was never recovered nor accounted for by the State.
The proper procedure for challenging the sufficiency of the evidence is by filing a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821. Honor did not file a motion for post-verdict judgment of acquittal in this case.
Alternatively, the Louisiana Supreme Court and this Court have addressed sufficiency claims when a defendant has filed a motion for new trial based on the verdict being contrary to the law and evidence. See State v. Bazley , 09-358 (La. App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied , 11-282 (La. 6/17/11), 63 So.3d 1039. Although Honor herein filed a motion for new trial, he did not specifically argue that the verdict was contrary to the law and evidence.
In any event, the failure to file a post-verdict judgment of acquittal or a motion for new trial challenging the sufficiency of the evidence does not preclude appellate review of the sufficiency of the evidence. See State v. Washington , 421 So.2d 887, 889 (La. 1982) ; State v. Henry , 13-558 (La. App. 5 Cir. 3/26/14), 138 So.3d 700, 713 n.17, writ denied , 14-0962 (La. 2/27/15), 159 So.3d 1064. Thus, Honor's argument is properly before this Court.
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) ; State v. Mickel , 09-953, (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied , 10-1357 (La. 1/7/11), 52 So.3d 885.
In cases involving circumstantial evidence, the trial court must instruct the jury that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Ellis , 18-463 (La. App. 5 Cir. 7/15/19), 276 So.3d 633, 642.
It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Reed , 11-507 (La. App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied , 12-0644 (La. 9/14/12), 97 So.3d 1014. When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey , 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied , 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied , 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon , 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied , 08-0987 (La. 1/30/09), 999 So.2d 745.
First degree 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 the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. La. R.S. 14:64.1 ; State v. Carter , 13-94 (La. App. 5 Cir. 10/30/13), 128 So.3d 1108, 1113, writ denied , 13-2701 (La. 4/25/14), 138 So.3d 644 ; State v. Cambrice , 10-26 (La. App. 5 Cir. 4/26/11), 64 So.3d 363, 370, writ denied , 11-1181 (La. 3/23/12), 84 So.3d 568. To support a conviction for first degree robbery, the State must prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim's belief was objectively reasonable under the circumstances. Cambrice , 64 So.3d at 370. The statute excludes unreasonable panic reactions by the victim but otherwise allows the victim's subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery. Id. Direct testimony by the victim that he or she believed the defendant was armed, or circumstantial inferences arising from the victim's immediate surrender of his or her personal possessions in response to the defendant's threats, may support a conviction for first degree robbery. Id. , 64 So.3d at 370-71.
Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Flag , 18-70 (La. App. 5 Cir. 12/19/18), 262 So.3d 1018, 1028 n.11, writ denied , 19-0205 (La. 4/29/19), 268 So.3d 1034 ; State v. Ray , 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied , 13-1115 (La. 10/25/13), 124 So.3d 1096 ; Cambrice , 64 So.3d at 371.
First, regarding the lack of inclusion of a "swab of the hat" on the evidence log, our review of the Scientific Analysis Report from the Louisiana State Police Crime Laboratory reveals that Exhibit 1 of the evidence submitted by the SJPSO on January 28, 2016 was "One Faded Glory brand knitted hat" and Exhibit 1A was a swab from the interior of that hat. The report, which was introduced as evidence at trial, reflects that a swab of the "hat" recovered less than two hours after the incident from underneath a house located only a half of a mile from the Big River store, cannot exclude defendant as a donor from the DNA profile. Further, the hat matches that worn by the assailant seen in the surveillance video of the robbery, which was also introduced at trial.
Next, although Keyes testified that the robber was wearing a black ski mask, the majority of the hat in question is black and the color of stripes on a hat might not be the first point of inquiry when a victim is faced with a firearm. The presence of stripes is a minor discrepancy. Furthermore, Shrake identified Honor as the perpetrator of the robbery and linked him to the items, including the hat, found underneath the house.
It is the role of the fact-finder to weigh witness credibility, and this Court will not second-guess the jury's credibility determinations beyond the sufficiency evaluations under the Jackson standard of review. See Reed , supra . The jurors were instructed that they were the sole judges of the credibility of the witnesses and of the weight that the witnesses' testimony deserved. Given the evidence presented at trial, we find that the evidence was sufficient under the Jackson standard to prove that Honor was the perpetrator of the robbery, and the State negated any reasonable probability of misidentification.
Mistrial
In his second assignment of error, Honor argues that the trial court erred in denying his motion for mistrial when the State's comment during closing arguments that the defense could have called an expert to testify as to the side effects of Shrake's drug use exceeded the scope of closing argument. Honor avers that this improper argument prejudiced him and placed the burden of proof upon him to prove his innocence by alluding to the fact that he should have presented expert testimony. Honor contends that the jury returned a verdict based on the State's misstatement that he had the burden to present expert testimony.
During defense counsel's closing argument, he noted that the State's case mostly relied upon Shrake's testimony and sought to discredit her. Defense counsel referenced the lies Shrake told and pointed to alleged inconsistencies in her trial testimony in order to persuade the jury that Shrake was also lying on the witness stand. He also sought to discredit her on the basis of her admitted drug use. Defense counsel stated,
She also admitted that she had a heroin addiction. She admitted on the stand that she had been shooting up heroin since she was pregnant, said she wasn't proud of that, and she told you that she was taking Suboxone at the time this robbery occurred ... Now, I want to go over some facts just for a minute to talk about them. Every time you turn on the TV, there's a problem in this country with opiate addition. [sic] You hear about opioids all the time. You have a witness that the State is expecting you to believe who admitted to you that she's got a heroin problem. Now, I don't know if you know much about heroin, and I'm not going to sit here and go on and on, but heroin is not only derived from opiates, heroin is extremely strong. It's referred to sometimes as a "super drug," developed to treat wartime injuries as almost like a substitute for morphine. It's an extremely strong drug. I don't know if you know anybody who's ever had heroin addition [sic] or been around anybody who's done heroin, but I submit to you that it's pretty common knowledge that people who do drugs like that, they sometimes don't know what they're doing. They're confused. You have people wake up from a heroin binge or doing heroin or something like that, they don't even really remember what they did or what happened. That's what the State presented to you as their star witness in this case.
Subsequently, in closing rebuttal, the State responded,
Now, he goes into talking about drugs and who was on drugs and whatever. He's not a drug expert. He doesn't know
anything about what's the effects of drugs. He could have called his own expert up here, drug expert: "Tell us what happens when somebody's on a certain drug? What's the side effects?" So, don't let that muddy the water.
Following closing, the trial court's instructions to the jury, and its retirement to deliberate, defense counsel made an oral motion for mistrial based on the State's comment. Defense counsel communicated his belief that it was inappropriate for the State to argue in front of the jury that he should have had an expert testify as he had no burden to call witnesses at trial. The State responded that defense counsel "opened that door," and a mistrial was not appropriate. The trial court denied the motion, finding that the State's comment was not prohibited after defense counsel had discussed the power of heroin and opiates to the jury. Further, out of an abundance of caution, the trial judge stated that she had advised the jury more than once that Honor was presumed innocent, and the State had the burden of proving the elements of the crime beyond a reasonable doubt.
A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Williams , 14-40 (La. App. 5 Cir. 9/24/14), 151 So.3d 79, 83, writ denied , 14-2250 (La. 6/19/15), 172 So.3d 649 ; State v. Davis , 12-512 (La. App. 5 Cir. 4/24/13), 115 So.3d 68, 79, writ denied , 13-1205 (La. 11/22/13), 126 So.3d 479.
Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. The State's rebuttal shall be confined to answering the argument of the defendant. See La. C.Cr.P. art. 774.
Prosecutors are allowed wide latitude in choosing closing argument tactics; however, this latitude is not without limits. State v. Draughn , 05-1825 (La. 1/17/07), 950 So.2d 583, 614, cert. denied , 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007) ; State v. Greenup , 12-881 (La. App. 5 Cir. 8/27/13), 123 So.3d 768, 775, writ denied , 13-2300 (La. 3/21/14), 135 So.3d 617 ; State v. Vansant , 14-1705 (La. App. 1 Cir. 4/24/15), 170 So.3d 1059, 1063. A prosecutor should refrain from argument that tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury's verdict. State v. Messer , 408 So.2d 1354, 1356 (La. 1982). Even where a prosecutor's argument has exceeded the scope of Article 774 or is deemed to be improper, a reviewing court should credit the good sense and fairmindedness of the jurors who have heard the evidence. State v. Williams , 96-1023 (La. 1/21/98), 708 So.2d 703, 716, cert. denied , 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998).
The trial judge has broad discretion in controlling the scope of closing arguments, and a conviction will not be reversed on the basis of improper closing argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. See Draughn , 950 So.2d at 614 ; Vansant , 170 So.3d at 1063. In Williams , 151 So.3d at 82-84, defense counsel in closing argument argued the State could have called a certain witness that it did not. In rebuttal argument, the prosecutor stated that the defendant had that particular witness under subpoena and could have called him to testify. The defendant moved for a mistrial, arguing the State shifted the burden of proof to the defendant. The motion for mistrial was denied. In finding no abuse of discretion in denying the motion for mistrial, this Court noted that the prosecutor's rebuttal was in response to defense counsel's argument, and as such, a mistrial was not warranted.
Here, defense counsel's closing statement was an attempt to call into question the reliability and credibility of Shrake's testimony due to her admission that she had used Suboxone on the night of the robbery and had used heroin in the past. It is well established that argument on the credibility of a witness is proper where the facts bearing on the witness' credibility appear in the record. State v. Everett , 11-0714 (La. App. 4 Cir. 6/13/12), 96 So.3d 605, 630, writs denied , 12-1593 and 12-1610 (La. 2/8/13), 108 So.3d 77 (citing La. C.Cr.P. art. 774 ; State v. Sayles , 395 So.2d 695, 697 (La. 1981) ). In response to this argument, the State admonished the jury that Honor could have called an expert to testify as to the alleged effects of the drugs and that defense counsel was only trying to "muddy the water." As such, the State's comment in rebuttal was a direct response to defense counsel's attack of Shrake's credibility and his suggestion that Shrake's testimony was not believable because she previously admitted to using heroin. Therefore, we find that the State's remark fell within the scope of rebuttal in response to Honor's argument, and was not an attempt to place its burden of proof upon Honor.
Given the "good sense and fairmindedness of the jury," we cannot say that the remark influenced the jury or contributed to the verdict. In addition to her repeated drug use during pregnancy, the fact that Shrake participated in the robbery, pled guilty to conspiracy for her involvement, and had admittedly lied to detectives during their investigation of the incident was known to and considered by the jury. Furthermore, the trial judge instructed the jury following closing arguments that Honor was presumed innocent until each element of the crime constituting his guilt was proven beyond a reasonable doubt and that he was not required to prove his innocence. Further, she stated that Honor was not required to call any witnesses, produce any evidence, or testify nor could a presumption of guilt be raised or an inference of any kind be drawn from the fact that Honor did not testify or call witnesses. Therefore, we find that the trial court did not abuse its discretion when it denied Honor's motion for mistrial. This assignment of error is without merit.
Excessive Sentence
In his final assignment of error, Honor argues that his sentence is constitutionally excessive and a needless imposition of pain and suffering which makes no meaningful contribution to acceptable goals of punishment. He recognizes that, while he has a criminal record, he cannot be considered "the worst of the worst" type of offender. Honor also argues that his sentence was imposed as punishment for exercising his right to trial, rather than accepting the State's plea offer of twenty years imprisonment.
The State responds that given the facts of this case and Honor's criminal history, the sentence was tailored to Honor's conduct and is not constitutionally excessive. It notes that the trial court adequately considered the sentencing guidelines of La. C.Cr.P. art. 894.1.
At the sentencing hearing, the trial court imposed Honor's sentence as follows:
THE COURT:
This is State of Louisiana versus Maurice Honor , Docket No. 16-F-7361. Let the record reflect Mr. Alessi is present, as well as Mr. Honor. This is a case of a 32-year-old male who is officially classified as a fourth felony offender. On May 17th, 2018, after a three-day jury trial, the defendant was found guilty as charged of First Degree Robbery resulting from his arrest on January 17th, 2016. Sentencing was deferred and a Presentence Investigation Report was ordered. The defendant was ordered to produce any mitigating evidence; however, the Court received no mitigating from or on behalf of the defendant. The Presentence Investigation Report has been made available to the defendant and his counsel and is filed herein and made a part hereof by reference and is ordered sealed.
The offense of First Degree Robbery provides for a sentence of imprisonment at hard labor for not less than three nor more than 40 years, without benefit of parole, probation, or suspension of imposition or execution of sentence. The Presentence Investigation Report indicates that the defendant is not eligible for an IMPACT Program. After taking into consideration the report provided to the Court, the Court believes that there is an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime, the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution, and a lesser sentence would deprecate the seriousness of the defendant's crime.
The Court noted the defendant's criminal record as contained in the Presentence Report and considered the fact that the defendant was afforded both probation and parole on previous convictions, which were revoked due to the defendant's violations of the conditions of his probation and parole. In arriving at a sentence, the Court has considered all factors mentioned in Code of Criminal Procedure Article 894.1.
For all of the above reasons, it is the sentence of this Court that the defendant be committed to the Department of Corrections for a period of 40 years, at hard labor, without benefit of parole, probation, or suspension of imposition or execution of sentence, with credit for time served since his date of arrest, January 19th, 2016.
The presentence investigation, or PSI, report is part of the appellate record but is under seal. A PSI report is confidential under La. C.Cr.P. art. 877(A), which states that a PSI report "shall be privileged and shall not be disclosed directly or indirectly to anyone" other than the sentencing court, the victim, and other specified persons and entities. La. C.Cr.P. art. 877(C) provides that "[t]he presentence investigation report, edited to protect sources of confidential information, shall be made a part of the record if the defendant seeks post-conviction relief only on the grounds of an excessive sentence imposed by the court."
On appeal, Honor only challenges his sentence as unconstitutionally excessive; he does not raise any additional grounds for review of his sentence. Even in the absence of filing a motion to reconsider or failure to state a specific ground upon which the motion is based, this Court will review a sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1(E) ; State v. Fisher , 03-326 (La. App. 5 Cir. 7/29/03), 852 So.2d 1075, 1084, writ denied , 03-2545 (La. 5/14/04), 872 So.2d 510.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it may be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622.
Maximum sentences are generally reserved for cases involving the most serious violations of the offense charged and for the worst type of offender. State v. Hensley , 04-617 (La. App. 5 Cir. 3/1/05), 900 So.2d 1, 12, writ denied , 05-0823 (La. 6/17/05), 904 So.2d 683. A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent an abuse of that discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey , 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id.
Honor was convicted of first degree robbery in violation of La. R.S. 14:64.1. He faced a sentencing range of 3-40 years imprisonment. The trial court sentenced him to forty years at hard labor without the benefit of parole, probation or suspension of imposition or execution of sentence. Therefore, Honor received the maximum sentence carried by La. R.S. 14:64.1.
Applying the three factors to this case, the facts of this case seem to indicate that Honor robbed Keyania Keyes, the manager at the Big River store, with a BB gun. Honor went into the store in the early morning hours when it was likely empty and wore dark clothing and a mask to conceal his identity. Honor grabbed Keyes, ordered her to give him the cash from the drawer, and asked about getting into the safe, but Keyes told him she was unable to open it. At that time, Lieutenant Lafargue arrived outside to do a routine check of the store and interrupted the robbery. Though she sustained no physical injuries, Keyes was visibly traumatized after the incident. In addition, Honor used Shrake to scope out the store before he went inside, and according to her, attempted to rob a different store but only decided not to do so because it was too busy. Shrake, who was pregnant at the time of the robbery, testified that Honor pulled her hair, put the gun in her face, and threatened to kill her family.
We note that, although Honor used a BB gun during the commission of this robbery, this Court has found that a BB gun is a dangerous weapon sufficient to support a conviction of armed robbery, which carries a sentencing range of 10-99 years. See State v. Phillips , 13-154 (La. App. 5 Cir. 12/12/13), 130 So.3d 416, 422, writ denied, 14-147 (La. 9/26/14), 149 So.3d 257. Honor herein was initially charged with armed robbery under La. R.S. 14:64.1, and the State thereafter reduced the charge.
Also, first degree robbery is listed as a crime of violence under La. R.S. 14:2(B). The trial judge referenced that Honor, who was thirty-three years old, was a fourth-felony offender who was afforded both probation and parole on previous convictions, which were revoked due to Honor's violations of the conditions and that a lesser sentence would deprecate the seriousness of Honor's crime.
The PSI report indicates that Honor has committed several crimes against the person, including the instant offense. She also referenced Honor's failure to produce any mitigating evidence on his behalf and her consideration of La. C.Cr.P. art. 894.1. The multiple bill included in the record alleges that Honor has two prior convictions of being a principal to simple burglary.
In selecting a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions but may properly review all prior criminal activity. State v. Pamilton , 43,112 (La. App. 2 Cir. 3/19/08), 979 So.2d 648, 656 n.5, writ denied , 08-1381 (La. 2/13/09), 999 So.2d 1145. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. These matters may be considered even in the absence of proof the defendant committed the other offenses. Id.
In this matter, the record reflects that the trial court considered Honor's prior criminal history. In addition, Honor was offered a plea deal of twenty years imprisonment, which he rejected. As a result, this matter went to trial where the trial court was able to fully hear the facts of this case, which it considered in its sentencing of Honor.
After considering the three factors as applied to the instant case, we find that the trial court did not abuse its discretion in sentencing defendant to forty years of imprisonment on the first degree robbery conviction. The record supports the maximum sentence imposed by the trial court. State v. Haynes , 52,331 (La. App. 2 Cir. 11/14/18), 260 So.3d 738, writ denied , 18-2081 (La. 6/3/19), 272 So.3d 542.
Honor also argues that his sentence was imposed as punishment for exercising his right to trial, rather than accepting the State's plea offer of twenty years imprisonment. The record fails to reflect that Honor made this argument either by objection at the time of sentencing or in his motions to reconsider, and therefore, this issue is not properly before this Court. See State v. Aleman , 01-743 (La. App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066-67, writ denied , 02-0481 (La. 3/14/03), 839 So.2d 26.
Errors patent
As is our routine practice, the record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990).
During the sentencing, the trial court stated that Honor's sentence is "not subject to diminution for good behavior pursuant to the provision of R.S. 15:571.3." However, a "trial court lacks the authority to grant or deny good time. Except where otherwise provided by law, the provisions of LSA-R.S. 15:571.3(C) are directed to the Department of Corrections exclusively, and ‘the sentencing judge has no ... role in the matter of good time credit.’ " State v. Washington , 19-39 (La. App. 3 Cir. 6/5/19), 274 So.3d 98, 103 (citing State ex rel. Simmons v. Stalder , 93-1852 (La. 1/26/96), 666 So.2d 661 ; State v. Braziel , 42,668 (La. App. 2 Cir. 10/24/07), 968 So.2d 853, 861 ).
Accordingly, we remand this matter for amendment of the commitment to delete the restriction placed on Honor's sentence. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-0481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ); State v. Wiley , 10-811 (La. App. 5 Cir. 4/26/11), 68 So.3d 583, 593, writ denied , 11-1263 (La. 3/30/12), 85 So.3d 106 ; State ex rel. Roland v. State , 06-0244 (La. 9/15/06), 937 So.2d 846.