Opinion
NO. 2012 KA 2132
2013-09-13
STATE OF LOUISIANA v. ROBERT GOULD
Walter P. Reed District Attorney Covington, Louisiana Kathryn Landry Special Appeals Counsel Baton Rouge, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Prentice L. White Baton Rouge, Louisiana Counsel for Defendant/Appellant Robert Gould
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 517919
The Honorable Allison H. Penzato, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
Kathryn Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
Prentice L. White
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Robert Gould
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
THERIOT, J.
The defendant, Robert Gould, was charged by felony bill of information with possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies (count 1), a violation of La. R.S. 14:95.1, and aggravated battery (count 2), a violation of La. R.S. 14:34. He pled not guilty and, following a jury trial, was found guilty as charged. Thereafter, the state filed a multiple offender bill of information as to count 1, and the defendant agreed to the allegations of the bill. The defendant was adjudicated a third-felony habitual offender. He was then sentenced to twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence and ordered to pay a $1,000 fine as to count 1. He was sentenced to ten years at hard labor as to count 2, and the court ordered that both sentences were to run concurrently. The defendant argues on appeal that the evidence presented was insufficient to support his convictions and that his sentences are excessive. For the following reasons, we affirm the defendant's convictions, habitual offender adjudication, and sentence on count 2; we amend his habitual offender sentence on count 1 to remove the imposition of a fine and affirm as amended.
The defendant's bill of information lists his underlying offense for count 1 as his December 14, 2009 conviction under the Twenty-Second Judicial District Court, St. Tammany Parish, Docket No. 478144, for distribution of cocaine.
The multiple offender bill lists the defendant's predicate offenses as his October 14, 2008 convictions under the Twenty-Second Judicial District Court, St. Tammany Parish, Docket No. 449405, for distribution of cocaine (counts 1 and 2).
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FACTS
On November 4, 2011, Officer Michael Deckelman with the Slidell Police Department responded to a shooting near Walnut and Beechwood Streets. He located .40 caliber bullet casings in the street and spoke with residents in the area who stated they heard bullets strike their residence. Officer Deckelman spoke with the victim, Blaine Clay, who gave him the name "Tank," as the shooter, which Officer Deckelman knew to be the defendant. The defendant and Kendrick Hawkins, also known as "Duke," were located at a hotel in Baton Rouge. The defendant was arrested and both he and Hawkins each gave a recorded statement.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues that there was insufficient evidence to support his convictions. He does not contest the elements of the offenses, only his identity as the gunman. In support of his argument, he contends that his convictions were based on unreliable eyewitness testimony. Specifically, he argues that Kendrick Hawkins's testimony was "contaminated" by Hawkins's desire to avoid being sentenced as a multiple offender.
The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged and defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Jones, 596 So.2d 1360, 1369 (La. App. 1st Cir.), writ denied, 598 So.2d 373 (La. 1992). The Jackson standard of review 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 trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492 (La. App. 1st Cir. 2/14/03), 845 So.2d 416, 420. Furthermore, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibility of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.
At trial, the victim Blaine Clay testified that he pled guilty to possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies and was sentenced to ten years without benefit of probation, parole, or suspension of sentence. He was not billed as a multiple offender in exchange for his agreement to testify in the instant case. According to the victim, on the day of the incident, he was with his cousins Terrence and Amos Dolliole, when someone with his face covered ran up to him with a gun. The victim was unarmed, so he left and got a gun. When he returned, a group of people were standing outside and shots were being fired. When he saw someone in the group with a gun, he turned to run away, but was shot in the back of his leg. When asked why he told the police that it was the defendant who shot him, the victim stated that he was going by what someone else told him.
Kendrick Hawkins testified that he pled guilty to accessory and was not billed as a multiple offender with the understanding that he would testify in the instant matter. Hawkins is a friend of the defendant and was on Walnut Street near Beechwood Street on the night of the shooting. He stated that he and Terrence Dolliole had a disagreement earlier that day, but that they had resolved their differences. According to Hawkins, the defendant was armed that night with a .40 caliber firearm. He saw the defendant shoot at the victim, who was running towards them with a weapon. He saw the victim fall down after being shot and then get up to run away. Hawkins testified that he was absolutely sure that the defendant had a gun and was shooting toward the victim.
The defendant's taped statement was played at trial. In his statement, the defendant stated that earlier on the day of the shooting, Hawkins and "Little Man," who he identified as Terrence Dolliole, had an argument over a dice game. Hawkins called the defendant, and the defendant went to Hawkins at the location of the shooting. The defendant then left the scene, but came back and walked around outside with Hawkins. The victim came toward them with a gun and started shooting, but did not hit anyone. A man with the victim told the victim to give him the gun so he could shoot Hawkins and the defendant. When the defendant heard that, he began shooting. He stated that he had a .40 caliber firearm that he fired until it emptied.
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 which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury's verdicts reflected the reasonable conclusion that based on the testimony of the victim and Hawkins, the defendant was the person who shot the victim. In finding the defendant guilty, the jury clearly rejected the defense's theory of misidentification. See Moten, 510 So.2d at 61.
The jury heard testimony about the victim's and Hawkins's involvement in the incident and was aware that both witnesses were not billed as multiple offenders in exchange for their testimony. After hearing all of this testimony, the jury found the defendant to be guilty. The defendant did not testify. Whether the jury believed some or all of the testimony of the victim and Hawkins cannot be ascertained from the verdicts. Regardless, 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 factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932.
After a thorough review of the record, we find that the evidence negates any reasonable probability of misidentification and supports the jury's verdicts. 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 suggested by the defense at trial, that the defendant was guilty of possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies and aggravated battery. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues that his sentences are excessive. Specifically, he contends that the state used his underlying offense for the charge on count 1 as one of his predicate offenses in the multiple offender bill. He also contends that the state incorrectly used two predicate offenses in the multiple offender bill that were related and entered on the same day.
The defendant did not make an oral or written motion to reconsider sentence. One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the district court judge still has the jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Minis, 619 So.2d 1059 (La. 1993) (per curiam). Under the clear language of Louisiana Code of Criminal Procedural article 881.1E, failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. A motion to reconsider was not filed in this case. Accordingly, the defendant is procedurally barred from having his challenge to the sentences reviewed by this court on appeal. State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.
Although the defendant entitles this assignment of error as "Excessive Sentence[,]" he is actually attacking the habitual offender proceedings. Relying on State v. Johnson, 2003-2993 (La. 10/19/04), 884 So.2d 568, the defendant claims that the district court erred in adjudicating him as a third-felony habitual offender because his two predicate offenses were based on "related conduct" and should have been counted as one conviction. This issue was not raised in the court below. "Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence." La. R.S. 15:529.1D(1)(b). Therefore, we are precluded from reviewing this assignment of error on appeal. See La. Code Crim. P. art. 920(2). Furthermore, contrary to the defendant's assertion, the state did not use his underlying offense for the charge on count 1 as one of his predicate offenses in the multiple offender bill. Nor was there any error in utilizing the two distribution of cocaine convictions entered against defendant on October 14, 2008, as separate predicates, even if they did arise from related conduct. See State v. Shaw, 2006-2467 (La. 11/27/07), 969 So.2d 1233, 1245.
This assignment of error has no merit.
SENTENCING ERROR
Under La. Code Crim. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After a careful review of the record, we have found sentencing errors.
After adjudicating the defendant to be a third-felony habitual offender, the district court sentenced him to twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence and ordered him to pay a $1,000 fine on count 1. Pursuant to the habitual offender law, if the third felony and the two prior felonies are felonies defined as a crime of violence under La. R.S. 14:2B, a sex offense as defined in La. R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1A(3)(b). The defendant's third felony, possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, is a crime punishable for twelve years or more. See La. R.S. 14:95.1B. The defendant's two prior felonies, both for distribution of cocaine, are violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more. See La. R.S. 40:967B(4)(b). Thus, a sentence of life imprisonment was mandatory in this case, and the defendant's sentence is illegally lenient. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882A. However, because the sentence is not inherently prejudicial to the defendant, and neither the state nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 952 So.2d at 123-25.
Additionally, we have discovered a second sentencing error in that the district court imposed a $1,000 fine on the defendant as part of his habitual offender sentence on count 1. La. R.S. 15:529.1 does not authorize assessment of the fine mandated in the underlying criminal reference statute when imposing a habitual offender sentence. State v. Thomas, 2012-0177 (La. App. 1st Cir. 12/28/12), 112 So.3d 875, 880 (en banc). When sentencing error does not involve the exercise of sentencing discretion, there is no reason why the appellate court should not simply amend the sentence. State v. Fraser, 484 So.2d 122, 124 (La. 1986). Accordingly, the defendant's habitual offender sentence on count 1 is amended to remove the imposition of the fine.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE ON COUNT 2 AFFIRMED; HABITUAL OFFENDER SENTENCE ON COUNT 1 AMENDED TO REMOVE IMPOSITION OF FINE, AND AFFIRMED AS AMENDED.