State v. BurtonState v. Burton
On August 20, 1997, defendants Edward Burton and George Simon were charged by bill of information with armed robbery,
STATEMENT OF FACTS:
Charles Delong testified that at 7:35 a.m. on June 11, 1997, he was on his way to catch the streetcar to work. As he was walking on Second Street towards St. Charles Avenue, the defendants approached him on bicycles, one stopping in front of him (Simon), the other to his side (Burton). Delong asked the men if they were going to rob him, and Simon told Delong to empty his pockets. Delong could see the handle of a gun under the thin shirt Simon was wearing and could in fact discern that the gun was a revolver. Delong told the men they would not rob him if they believed in God. Simon replied that he was Satan.
Delong then gave Simon his money clip containing $12.00. Simon took the money, handed the clip back to the victim, remarked,
Immediately after the crime, Delong spoke to his neighbor, Demetrius Brimmer, who had witnessed the robbery and knew the defendants. Delong later identified the men in photographic lineups. Brimmer said he witnessed the crime from about a block away while he was seated in his truck with his girlfriend, Shantell. He saw the two men as they rode by on bicycles. After they passed him, he watched them in his rearview mirror. He saw the men approach Delong, so he exited the truck to see what they were doing. He witnessed an exchange of money “at gunpoint,” although he did not actually see the gun. He recognized the men, and Shantell told him their names. He identified Burton in a photographic lineup but could not identify Simon.
Burton‘s girlfriend, Anetta Tyson, testified that Burton was at her house when the crime occurred. Her uncle, Carey Edwards, also said he saw him there.
Simon testified that he suffered a gunshot wound to the head in 1993, that he was paralyzed, that he can only walk with braces, and that he does not own a bicycle. He denied any involvement in the crime.
ERRORS PATENT:
A review of the record for errors patent reveals none.
BURTON ASSIGNMENT OF ERROR ONE, BURTON PRO SE ASSIGNMENT OF ERROR ONE, SIMON ASSIGNMENT OF ERROR ONE, SIMON PRO SE ASSIGNMENTS OF ERROR ONE AND TWO:
By these assignments, the defendants argue that the State presented insufficient evidence to support their convictions. Particularly, they argue there was insufficient evidence to prove that Simon was armed with a gun, that Burton was a participant in the crime, or that their identities were proven.
The standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the elements of the crime proven beyond a reasonable doubt. See also
As to Burton, this court discussed proof of guilt as to a principal in State v. Richardson, 96-2598 p. 7 (La.App. 4 Cir. 12/17/97), 703 So.2d 1371, 1374, writ denied sub nom State ex. rel. Richardson v. State, 98-0228 (La.9/25/98), 726 So.2d 7:
La. R.S. 14:24 provides: “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” In order to support a defendant‘s conviction as a principal, the State must show that the defendant had the requisite mental state for the crime. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Hampton, 94-1943 (La. App. 4th Cir.12/27/96), 686 So.2d 1021, writ denied, 97-0166 (La.6/13/97), 695 So.2d 986.
In this case, the jury heard testimony that Burton rode up to the victim alongside Simon. He stopped his bicycle directly next to the victim, thus limiting an avenue of escape. During the robbery, he continually motioned as if he were concealing a gun. Elicited during credible testimony, these facts enabled the jury to find that Burton directly and intentionally aided Simon in taking the victim‘s money. Burton therefore qualified as a principal to the crime of armed robbery.
As to the issue of identification, Delong identified the defendants in photographic lineups and again at trial. Brimmer knew the defendants from the neighborhood and identified Burton in a photographic lineup. At the least, Delong‘s credible identifications enabled the jury to conclude that Burton and Simon were the men who robbed him.
In sum, the evidence produced was sufficient to support the convictions. We find these assignments to be without merit.
SIMON ASSIGNMENT OF ERROR TWO:
By this assignment, defendant alleges that the trial court erred in allowing the introduction of other crimes evidence, specifically the statements that he had “robbed for less” than $12.00 and that he was Satan. Prior to trial, defense counsel moved to exclude these statements from the evidence. Simon argues that the trial court erred in admitting the statements because they could have led the jury to believe that he was a career criminal and an evil, immoral person.
Generally, evidence of other crimes, wrongs or acts is inadmissible. However,
In this case, the defendant‘s comment that he was Satan is not evidence of other crimes. Defendant‘s remark, “I‘ve robbed for less,” was an integral part of the act at issue. It was so related to and intertwined with the offense that the State could not have accurately presented its case without reference to it. Even if the
This assignment of error is without merit.
BURTON ASSIGNMENT OF ERROR TWO, BURTON PRO SE ASSIGNMENT OF ERROR TWO, SIMON ASSIGNMENT OF ERROR THREE, SIMON PRO SE ASSIGNMENT OF ERROR TWO:
Finally, the defendants argue in these assignments of error that their sentences are excessive as a matter of constitutional law.
In this case, the assistant district attorney informed the court at Simon‘s sentencing hearing that Simon had prior arrests for “shoplifting, criminal mischief, simple criminal damage, simple burglary of a vehicle, gambling, possession of stolen property, concealed weapon, simple robbery, another battery, another possession of a stolen car, another battery, and there are like two or three municipal batteries.” The judge then stated:
These are very serious charges, Mr. Simon. This man left his home to go to a job, and you and your partner to come [sic] jack him up for his money. He was shocked that he would be robbed of such a small amount of money. It‘s a sad day in broad daylight that people can leave their homes to catch the streetcar and thugs ride up and rob them. It‘s got to stop. We have become prisoners in our own homes in our own city and the only way to stop it is to [put] people like you in jail, do you understand?
As to Burton, he was not originally sentenced; he was sentenced for the first time as a second offender at a multiple bill hearing. After the trial court found him to be a second offender, his first offense having been the possession of stolen property worth more than $500,
Mr. Burton, I feel the same way about you as I do your co-defendant. Here is a man who left his home on his way to work in the morning, and you and your friend decide to rob him. It‘s a shame that in this community you can‘t feel safe to walk across the street to go to work in the morning without having thugs like you ride up on bicycles and stick guns in your face and take the $12 that he had. If you would have had a job like he had and going [sic] to work
every day you might not have to rob people. It‘s not fair to the people in this community to be terrorized, threatened and feel like [sic] they are the prisoners in our society and in our city when they are being terrorized by people like you. The sentencing range in this case is one half of 99 years which is 49 and a half years, that‘s 109 years.2 It is the sentence of this Court that you serve 60 years at hard labor in the custody of the Louisiana Department of Corrections, that sentence is without benefit of probation, parole, or suspension of sentence. You will receive credit for time served.
In State v. Goodman, 96-376 (La.App. 3 Cir. 11/6/96), 684 So.2d 58, the court affirmed the defendant‘s sentence of sixty-six months for unauthorized entry into an inhabited dwelling. As to the trial court‘s compliance with the requirements of
Once the reviewing court notes adequate compliance with
In State v. Davis, 596 So.2d 358 (La. App. 4 Cir.1992), writ denied, 604 So.2d 965 (La.1992), a first offender received three consecutive twenty-year sentences on each of three armed robbery convictions. In State v. Dunns, 441 So.2d 745 (La.1983), the Louisiana Supreme Court upheld a forty-year sentence imposed upon a first felony offender for armed robbery.
Here, Simon brazenly robbed the victim in the light of day as the victim was on his way to work, and he was willing to accept only the small amount of money the victim possessed. Simon faced a maximum of ninety-nine years in prison, and no fewer than five. His sentence of twenty years is certainly not an abuse of discretion under the circumstances of the case.
Burton‘s sentence presents a more difficult issue. Because of his prior
“Since the Habitual Offender Law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional.” State v. Johnson, 97-1906 pp. 5-6 (La.3/4/98), 709 So.2d 672, 675. “A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut the presumption of constitutionality.” Id. at 676. That is, as noted above, a court must be convinced that the sentence mandated “`makes no measurable contribution to acceptable goals of punishment‘, or is nothing more than `the purposeful imposition of pain and suffering’ and is `grossly out of proportion to the severity of the crime.‘” Id. (quoting State v. Dorthey, 623 So.2d at 1280-81); State v. Ash, supra; State v. Young, 94-1636 pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223 (Plotkin, J., concurring) (the defendant must show that he is “exceptional ... a victim of the legislature‘s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.“).
Even where, as here, the defendant‘s instant or prior crime is nonviolent, that fact alone is insufficient to rebut the presumption that the enhanced sentence is constitutional. State v. Johnson, 709 So.2d at 676; State v. Gass, 31,816, 31,817 (La. App. 2 Cir. 1/20/99), 728 So.2d 896. In Johnson, the defendant was convicted of possession of cocaine and marijuana. He pled guilty to a multiple bill listing three prior felony convictions for illegal possession of stolen things and theft of property valued between $100 and $500 — all nonviolent offenses. The trial court departed from the statutory minimum of twenty years and sentenced Johnson to thirty months in prison. The Supreme Court reversed the trial court and required Johnson to serve twenty years, finding no clear and convincing evidence justifying a departure. The court noted that the twenty year sentence contributed “to the sentencing goals of punishment and deterrence.” 709 So.2d at 678.
In State v. Jackson, 96-2540 (La.App. 4 Cir. 8/12/98), 718 So.2d 1001, 1002, writ denied, 98-2560 (La.2/26/99), 738 So.2d 1069, this court noted that Johnson, “in essence, precludes a court from ever deviating from the sentences pronounced under the habitual offender statute.” In State v. Jackson, the defendant was convicted after shoplifting a $159 jacket. He had two prior convictions for simple burglary and an eighteen year old conviction for simple robbery, which is defined in the sentencing guidelines as a crime of violence. Consequently, as a four-time offender who had once committed a crime of violence, the defendant faced a life sentence under the sentencing guidelines. This court initially vacated the trial court‘s compelled life sentence and remanded for
In State v. Hunter, 92-2535 (La.App. 4 Cir. 4/13/95), 654 So.2d 781, writ denied, 95-1217 (La.10/6/95), 661 So.2d 464, this court upheld a ninety-nine year sentence following the defendant‘s conviction for armed robbery, where the defendant‘s only prior conviction was for simple burglary. The circumstances in that case were more extreme than the instant ones, as the defendant had used a gun to take a car, with which he began a dangerous, high-speed chase. However, the defendant‘s sentence was also more severe than the sentence at issue. See also State v. Stepp, 28,868 (La. App. 2 Cir. 12/11/96), 686 So.2d 76, writ denied, 97-0410 (La.6/30/97), 696 So.2d 1006 (affirming ninety-nine year sentence following defendant‘s second armed robbery conviction, where second conviction resulted from defendant‘s participation as a principal).
In light of the brash and potentially dangerous nature of the instant crime and Burton‘s failure to demonstrate any mitigating circumstances, this court cannot hold that the trial court abused its discretion in sentencing Burton to sixty years in prison, especially since the aforementioned jurisprudence would apparently have forbidden a departure below the statutory minimum of forty-nine and one-half years. Burton has cited no contrary, mitigating authority. In sum, the defendants’ sentences are not unconstitutionally excessive.
Finally, Burton argues that the trial court violated
This assignment of error is also without merit. Accordingly, for the aforementioned reasons, the defendants’ convictions and sentences are affirmed.
AFFIRMED.