STATE of Louisiana v. Louis ALEXANDER
No. 98-KA-993
Court of Appeal of Louisiana, Fifth Circuit
March 10, 1999
734 So. 2d 43
Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
Sandra C. Jenkins, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Defendant/Appellant.
Defendant, Louis Alexander, was charged by bill of information with seven counts of armed robbery in violation of
The record shows that an investigation of several armed robberies of businesses on Behrman Highway during the summer months of 1997 lead to the arrest of defendant, Louis Alexander. In the course of the investigation, detectives conducted a search of the defendant‘s father‘s home, with his consent. Several articles of clothing belonging to defendant were taken in the search. No weapons were found. While in police custody, defendant made a statement in which he admitted two of the robberies.
In brief to this court, defendant assigns two errors. In the first assignment he asserts there is insufficient evidence to prove his guilt on counts four, six and seven. Specifically, defendant cites the inability of the victims to positively identify him from a photographic line-up and the failure of the state to introduce any physical evidence such as fingerprints to connect him to the crimes. The state argues that the evidence contained in the record, both direct and circumstantial, is legally sufficient to convict the defendant of the crimes charged.
The standard for testing the sufficiency of evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473, 479.
Proof of armed robbery pursuant to
The facts of the three contested convictions are as follows1. In count four defendant was charged with the armed robbery of Catherine Rhoto on August 25, 1997. On that date Ms. Rhoto was working as a cashier at the Super B Convenience Store on Behrman Highway. At about 5:30 p.m., a customer who was last in line placed a soda on the counter. He paid for the drink with a ten dollar bill and inquired about the price of a cigar. As Ms. Rhoto told him the price of the cigar, the man leaned over the counter, grabbed Ms. Rhoto‘s blouse and said, “this is a hold up, I‘m going to rob you and I have a gun“. At that point the man lifted his shirt to reveal the butt of a gun tucked in the waistband of his shorts. The man told Ms. Rhoto not to do or say anything or he would shoot her. The robber ordered Ms. Rhoto to give him the money from the cash register and her purse, and then told her to lie on the floor. Ms. Rhoto did as she was told until the robber left. Then she called police. Ms. Rhoto identified defendant as the robber in a photo lineup, and at trial. She testified that the robbery lasted about four minutes and that she looked at the robber‘s face, even though he told her not to, because she wanted to be able to identify him. She was positive in her identification of the defendant, and stated that she would remember the robber‘s face “till the day I die“. Ms. Rhoto also testified that the robber had a scar or blemish on his face, and that he was not wearing anything to hide his face. She described his attire as a lime green, or bright green polo type shirt and shorts. The same sort of garments were seized in a search of the defendant‘s father‘s home.
The basis of count six is a robbery of a Texaco gas station on Berhman Highway at about 8:30 p.m. on August 28, 1997. In that robbery a man entered the store and walked up behind the clerk on duty, Crystal Johnson. The man put a gun to Ms. Johnson‘s back and ordered her to turn around and open the cash register. The robber became impatient when Ms. Johnson began entering a code to open the register. He said “b_____h, I said open the f_____g register“. The robber took money from the register and asked her if she had any money. When she pulled out her pockets to show that she had no money, the man ran out of the store. Ms. Johnson called police. At trial Ms. Johnson testified that she did not get a good look at the robber, but did notice that he had a tear
Also admitted into evidence in connection with this count is the sworn statement of the defendant in which he admits to this robbery. In his statement the defendant stated that he walked into the gas station and pulled out a water gun which looks real in the dark and told the female employee to give him the money out of the cash register. She complied and defendant left.
The robbery which constitutes count seven occurred on September 7, 1997. On that night the Super B Convenience Store was robbed for a second time. Cathy Krummel, the cashier, was assisting a customer when she saw a black man walk though the parking lot. When the customer left, the man entered the store and asked for change of a one dollar bill. As Ms. Krummel opened the cash register, the man walked around the counter and put a black gun in her face. The man ordered her not to look at him and to give him the money. Ms. Krummel gave the man the money from the register, but continued to look at him. While Ms. Krummel was unable to make a positive identification from the photo line-up, she did make a positive identification of the defendant at trial.
As to this count, the state also introduced into evidence a copy of video surveillance tape and some photographs taken from the tape which were viewed by the jury. There were some discrepancies between the description of the attire worn by the robber given by Ms. Krummel, and the video tape of the robber. However, defendant‘s father positively identified the robber caught on tape as his son. Further, as previously stated, Ms. Krummel positively identified defendant at trial.
Given the evidence presented by the state on the above counts, we find the evidence sufficient to convict defendant on all contested counts. Accordingly, we find no merit in these assignments.
In the second assignment defendant argues his sentence is excessive because the trial judge did not sufficiently articulate reasons to support the sentence, because the record does not reflect that he had prior felony convictions, and because no one was injured during the robberies. The state responds that the record reflects that the defendant had a propensity for violent behavior and the record supports the sentences imposed.
The record reflects that the defendant filed a timely motion to reconsider sentence as required by
Both the
In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Daigle, supra; State v. Jackson, 597 So.2d 1188 (La.App. 5 Cir. 1992). The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Daigle, supra;
In the present case, defendant was convicted of five counts of armed robbery, violations of
Based on the evidence in the record, we do not find that defendant‘s sentence is excessive. First, prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982). Here, the record reflects that defendant has a criminal history commencing at a relatively early age. According to the commitment, the defendant was twenty-five years old at the time of sentencing. He had a 1991 conviction for possession of stolen things valued at over $500.00 and a 1994 conviction for armed robbery. According to the defendant‘s father‘s taped statement introduced at trial, the defendant had just been released from prison in May, 1997. Thus, the defendant had only been out of prison for two months when he began the spree of armed robberies in August which resulted in the instant five armed robbery convictions.
The record reflects that all of the victims were frightened for their lives during the armed robberies. In one of the robberies, the defendant actually injured one of the victims, Ms. Rhoto, when he grabbed her blouse and scratched her chest. A photograph showing this injury was admitted into evidence.
It is well settled that a sentence should not be set aside absent manifest abuse of discretion. State v. Frank, 94-923 (La.App. 5 Cir. 3/1/95), 652 So.2d 121, 123. In the present case, the trial judge could have imposed the maximum sentence of ninety-nine years for each conviction, but did not do so. Rather, the sentences the judge imposed were not only within the statutory limits but were, in fact, approximately one half of the maximum term of imprisonment that could have been imposed. Moreover, the trial judge was authorized under
However, in our review of the record for errors patent we note that the trial court failed to observe the twenty-four hour period between denial of a defense motion for new trial and sentencing of the defendant as required by
Absent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of a prematurely imposed sentence is not required. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. White, 404 So.2d 1202 (La.1981).
When a defendant does not waive the delay afforded in
For the foregoing reasons, we affirm the defendant‘s convictions, vacate the sentences and remand the matter for re-sentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED; MATTER REMANDED.
Notes
Article 883 provides as follows:
Concurrent and consecutive sentences
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.