Opinion
No. 2009 KA 0886.
October 27, 2009.
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA DOCKET NO. 440412 HONORABLE WILLIAM J. BURRIS, JUDGE PRESIDING.
Walter P. Reed, District Attorney, Covington, Louisiana, Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, Louisiana, Counsel for Appellee State of Louisiana.
Mary E. Roper, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Eric Bridges.
BEFORE: DOWNING, GAIDRY AND McCLENDON, JJ.
Defendant, Eric Bridges, was charged by bill of information with two counts of armed robbery (counts I and II), violations of LSA-R.S. 14:64, and he pleaded not guilty on both counts. Following a jury trial, defendant was found guilty as charged on both counts by unanimous verdicts. Thereafter, the state filed a habitual offender bill of information against defendant, alleging that, in regard to count II, he was a second-felony habitual offender. Following a hearing, the court adjudged defendant a second-felony habitual offender on count II. On count I, defendant was sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence. On count II, he was sentenced to sixty years at hard labor without benefit of probation, parole, or suspension of sentence to run concurrently with the sentence imposed on count I. Defendant moved for reconsideration of sentence, but the motion was denied. He now appeals, contending that the sentences were excessive. For the following reasons, we affirm the conviction and sentence on count I, and the conviction, habitual offender adjudication, and sentence on count II.
The predicate offense was set forth as defendant's June 15, 1998 conviction, under Orleans Parish Criminal District Court Docket #396-902, for possession of cocaine.
FACTS
Armed Robbery at Corporate Cleaners
Johniva Elaine Breakall, the victim of count I, testified at trial. On August 9, 2002, she was working at Corporate Cleaners on Gause Boulevard in Slidell. At approximately 4:00 or 4:30 a.m., Breakall arrived for work with her mother, Marilyn Diaspro, and her brother, James Diaspro. A man wearing a mask walked into the business through the back door and told Marilyn to get up because he was robbing her. The robber was approximately 6'4" tall. The robber brought Marilyn over to Breakall and, pointing the revolver at Breakall's face, told her to get up because he was also robbing her. The robber ordered James to go to the front of the business. The robber held a revolver to Marilyn's head and ordered her and Breakall to also go to the front of the business. At the front of the business, the robber ordered Marilyn and James to lie on the floor, and ordered Breakall to open the cash register and give him the money. Breakall put approximately $50 into a "book bag" that the robber had brought with him. The robber then demanded the keys to one of the vans parked at the front of the business. The keys were under the glass counter and were taken by the robber from the counter. Thereafter, the robber ordered Breakall, Marilyn, and James to start counting. He then left, but quickly returned and ordered James to pull the phone cord out of the wall. Breakall testified that she was terrified during the robbery and thought she was going to die.
The robber drove off in one of the business's vans. The van was recovered in New Orleans East at approximately 6:30 a.m. A box had been placed on the gas pedal and the vehicle had been abandoned in a grassy area. Someone had attempted to set the van on fire.
Armed Robbery at Burger King
Roxanna Navarre, the victim of count II, also testified at trial. On August 11, 2002, she was working at the Burger King restaurant on Gause Boulevard in Slidell. At approximately 7:45 a.m., a man with a gun "came over the counter" from the back and opened the front door to allow his accomplice to enter the restaurant. One of the robbers was short, while the other was tall. The shorter robber had a red handkerchief across his face and was armed with a revolver. He pointed his gun at Navarre and Shervette, who was also working at the restaurant. He forced Shervette and another employee into the freezer and then, along with his accomplice, forced Navarre into the office. Navarre was shaking, "scared to death," and thought she was going to die. The taller robber told Navarre to open the safe, and she complied. He removed the cash drawer from the safe, but forced Navarre to remove the money from the drawer and place it into a "duffel bag" that he had brought with him. He also took the night deposit from the safe. The robbers left the restaurant with approximately $1,500 and Navarre's vehicle, after taking her keys from her. Navarre's vehicle contained her purse with her credit cards, identification, and ATM card. She identified defendant in court as the shorter robber and indicated that she would "never forget his eyes." The police also found a partial shoe print on the counter at the restaurant following the robbery.
Navarre's vehicle was recovered in New Orleans East shortly before midnight on August 12, 2002. Defendant was driving the vehicle. A jacket with a receipt in the left-front pocket from Entergy to defendant was in the vehicle. The van also contained a black "book bag." Defendant was wearing shoes with characteristics which matched the partial shoe print recovered from the counter at the Burger King restaurant.
The personal items contained in Navarre's purse were never recovered. Navarre testified that after the recovery of her vehicle, she was afraid to drive the vehicle because the robbers knew her address and had all of her keys, including the keys to her house. She also suffered anxiety attacks and panic attacks and never returned to Burger King.
Following advice of his Miranda rights, defendant confessed to dropping off his accomplice to commit the armed robbery at Corporate Cleaners and confessed to being the robber wearing the red mask in the armed robbery at Burger King.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
EXCESSIVE SENTENCES
In his sole assignment of error, defendant argues his sentences were disproportionate to his actions because he was only a principal to the armed robbery at Corporate Cleaners and did not physically harm anyone during the armed robbery at Burger King. He also argues that the trial record fails to reflect any consideration of his personal history and potential for rehabilitation.
Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868, pp. 10-11 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La. 10/5/01), 798 So.2d 962.
Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64B. Any person who, after having been convicted within this state of a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows: if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. LSA-R.S. 15:529.1A(1)(a). On count I, defendant was sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence. On count II, he was sentenced to sixty years at hard labor without benefit of probation, parole, or suspension of sentence to run concurrently with the sentence imposed on count I.
In sentencing defendant, the court noted it had received a pre-sentence investigation report (PSI) in connection with count II. The court found that there was an undue risk of harm that during the period of any suspended sentence or probation, that defendant would commit another crime; that defendant was in need of correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution; that a lesser sentence would deprecate the seriousness of defendant's crime; that the offense resulted in significant permanent injury to the victim of count II. The court noted that in the PSI, the victim of count II reported that she has been in therapy for depression and anxiety, has been diagnosed with post-traumatic stress syndrome, has suffered from inability to fall asleep at night, has been unable to work, has been unable to go out in public, and has been unable, due to anxiety, to drive the vehicle stolen by the defendant. In regard to count II, the court concluded that the offense had caused significant permanent injury to the victim. The court also noted that defendant had used a dangerous weapon in the commission of count II, had been involved in other offenses, and had used a firearm or other dangerous weapon while committing or attempting to commit an offense which had as an element the use, attempted use, or threatened use of physical force against the person or property of another, and which by its very nature, involved a substantial risk that physical force would be used in the course of committing the offense.
The court noted the victim of count I had not been as specific in reporting the crime's impact on her life, but she had indicated that since the robbery, her life had changed drastically, and she no longer felt secure being alone.
The sentences imposed on counts I and II were not grossly disproportionate to the severity of the offenses and, thus, were not unconstitutionally excessive. The offense committed directly by defendant against Navarre, and indirectly by defendant's accomplice against Breakall, terrified the victims, placed their lives and the lives of those around them in danger, and resulted in mental injury to the victims. The court ordered and reviewed the PSI, which discussed in detail the harm the offenses had caused the victims. Defendant, a repeat offender, refused to provide any statement for the PSI.
This assignment of error is without merit.