State v. FullerState v. Fuller
- Reporters:
- ,
- Before:
- Edward A. Dufresne Jr., Susan M. Chehardy, Clarence E. McManus
SUSAN M. CHEHARDY, Judge.
Christopher T. Fuller appeals his conviction of armed robbery with a gun, his adjudication as a second-felony offender, and his sentences of 198 years and five years, both without benefit of parole, probation or suspension of sentence. We affirm.
On June 16, 2005, Fuller was charged by bill of information with one count of violation of
The defendant was sentenced to 99 years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court also imposed a consecutive five-year sentence under
The State filed a habitual offender bill of information, alleging the defendant was a fourth-felony offender based on the armed robbery conviction and prior convictions for forgery, robbery, and illegal use of a weapon. After a habitual offender hearing, the trial court adjudicated the defendant a second-felony offender. The court vacated the defendant‘s original sentence on count one and imposed an enhanced sentence of 198 years without benefit of parole, probation, or suspension of sentence. The court ordered that the enhanced sentence run consecutively to the five-year sentence.
FACTS
On April 25, 2005, Bryon McLeod was working the night shift at Mr. Binky‘s, an establishment in Kenner that sells sex novelties and movies. According to McLeod, the defendant was in the store at approximately 10:30 p.m. and had twice asked him for change for the upstairs viewing booths. Both times, McLeod gave the defendant change, which was kept in a separate cash drawer located below the cash register,
The defendant took money out of the cash drawer that was on the counter, then jumped over the counter, put the gun to McLeod‘s head, and ordered him to open the cash register. McLeod opened the cash register with a key, and the defendant took money out of the register. The defendant also took McLeod‘s cell phone and a binder containing approximately 150 DVDs that was at the end of the counter.
After the defendant left, McLeod called 911. Officer Anthony Woodson of the Kenner Police Department responded to the call. He met with McLeod, obtained a description of the perpetrator, and took a statement. The next day, Detective Keith Forsythe met with McLeod as part of a follow-up investigation. McLeod indicated he had received a call on his new cell phone, which had the same number as his stolen phone, from an unknown number asking for “Chris L.A.” McLeod provided his cell phone records to the police, which led Detective Forsythe to an address where he interviewed two females who were familiar with “Chris L.A.” Both females agreed to give statements at the police department.
On the way to the station, one of the females pointed to the defendant, who was standing near a convenience store, and identified him as “Chris L.A.” Another officer exited the vehicle and detained the defendant. A loaded weapon, later identified as the gun used in the robbery, was found in the defendant‘s front pants pocket. The defendant was advised of his rights and he agreed to give a statement, in which he admitted to committing the robbery.
A few days later, Detective Forsythe prepared a photographic lineup with the defendant‘s photo and showed it to McLeod, who immediately identified the defendant as the person who robbed him.
The defendant testified at trial and denied committing the robbery. He stated he did not even go into Mr. Binky‘s on the night of the incident. The defendant explained that the only reason he gave a statement admitting to the robbery was to secure the release of his female friend from custody and to prevent the police from taking her young child from her. He claimed the police told him what to say in his statement.
ASSIGNMENT OF ERROR NUMBER ONE
The defendant argues the evidence is insufficient to support his conviction for armed robbery because the State failed to prove his identity as the perpetrator.2 Specifically, he contends the State failed to negate the reasonable possibility that the victim, Bryon McLeod, was the actual perpetrator. The defendant asserts that McLeod was the only person who placed him at the scene, and McLeod was the only person who identified him as the robber. He points out that McLeod, an employee of Mr. Binky‘s, knew that none of the security cameras were operational. In addition, contrary to proper procedure,
The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).
“Encompassed in proving the elements of an offense is the necessity of proving the identity of the [d]efendant as the perpetrator.” State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. “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.” Id.
“Positive identification by only one witness is sufficient to support a conviction.” State v. Weaver, 05-169, p. 11 (La.App. 5 Cir. 11/29/05), 917 So.2d 600, 608, writ denied, 06-0180 (La.12/15/06), 944 So.2d 1277.
The defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction. He contends only that the State failed to prove his identity as the offender beyond a reasonable doubt. Therefore, we need not address the sufficiency of the evidence with respect to the statutory elements of armed robbery. See State v. Joseph, 03-1445, pp. 4-5 (La.App. 5 Cir. 5/26/04), 875 So.2d 1011, 1013.
To prove identification, the State offered the testimony of McLeod and Detective Forsythe. McLeod testified he had three opportunities prior to the robbery to view the perpetrator in the well-lit store. On each of these occasions, the robber stood directly in front of McLeod and a brief conversation took place. McLeod stated the perpetrator did not have anything covering his face and was not wearing sunglasses or a hat. After the robbery, McLeod was able to give a detailed description of the perpetrator and told the investigating officer he got a good look at the robber. Four days later, McLeod was shown a photographic lineup and immediately positively identified the defendant as the perpetrator. He also identified the defendant in court as the person who robbed him.
Detective Forsythe testified that after the defendant confessed to the robbery, he prepared a photographic lineup with the defendant‘s picture and showed it to McLeod. Detective Forsythe stated that McLeod, without hesitation, identified the defendant as the robber.
The defendant argues the evidence showed it was more likely that McLeod was the actual perpetrator of the robbery. He maintains that McLeod was initially a suspect, and asserts that McLeod was the only person who identified him as the robber.
At trial, Detective Forsythe testified there were some initial reasons to believe that McLeod may have been involved in the robbery. Because of those reasons, he interviewed McLeod to clear up a few questions he had. McLeod explained that Detective Forsythe came to his house with questions and wanted to search his home, to which he consented. McLeod stated he cooperated with the police, a fact corroborated by Detective Forsythe, and even
The defendant testified at trial and attempted to explain why he gave a statement confessing to the robbery. He claimed he confessed to the robbery to protect his friend, Ashley, because he was led to believe the police were going to lock her up, charge her with the armed robbery, and take her child. The defendant said he thought he was being smart by confessing because he thought he could secure Ashley‘s release and then prove his innocence by the store‘s video cameras.
The defendant also explained his possession of McLeod‘s phone by stating he and McLeod had been out together the weekend before the robbery. He claimed McLeod had left his phone in defendant‘s girlfriend‘s vehicle. McLeod denied that claim, and even denied knowing the defendant by name. Notably, during his testimony the defendant admitted to at least five prior felony convictions.
The jury heard all the evidence and clearly chose to believe the victim over the defendant. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Cazenave, 00-183, p. 14 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Bailey, 04-85, p. 5 (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). Further, as stated above, identification by only one person is sufficient to prove the identity of the perpetrator. Viewing the evidence in a light most favorable to the State, there was sufficient evidence to prove defendant was the perpetrator of the armed robbery. We find no merit to this assignment.
ASSIGNMENT OF ERROR NUMBER TWO
The defendant argues his enhanced 198-year sentence without benefits and his consecutive five-year sentence under
After the defendant‘s enhanced sentence was imposed, defense counsel orally objected to the sentence as excessive, without stating grounds upon which the objection was based, and noted his intention to file a motion for an appeal. The defendant did not file a written motion to reconsider sentence.
“Failure to make or file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only.” State v. Bolden, 04-1000, p. 3 (La.App. 5 Cir. 3/1/05), 901 So.2d 445, 447, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279;
The Eighth Amendment to the United States Constitution and
“A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion.” Smith, supra. 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, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.
“Three factors are considered in reviewing a trial court‘s sentencing discretion: 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.” State v. Stewart, 03-920, p. 16 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1027-28, writ denied, 04-0449 (La.6/25/04), 876 So.2d 832.
The defendant was sentenced to the maximum sentence permissible as a second-felony habitual offender convicted of armed robbery, 198 years at hard labor without benefit of parole, probation, or suspension of sentence. That is twice the longest sentence provided for a first conviction of armed robbery.
Similar sentences have been upheld as constitutional. In State v. Smith, 04-340, pp. 14-15 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 290-91, this Court upheld the defendant‘s maximum 198-year sentence for armed robbery as a second felony offender. We stated that armed robbery is a serious offense against the person and noted that the defendant in Smith placed the victim in fear of his life by holding a gun on him and threatening his life. We cited several other cases in which 198-year sentences were determined not to be excessive.
Regarding the additional consecutive five-year sentence, in State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228, the Louisiana Supreme Court recently held that the mandatory consecutive five-year enhancement to habitual offender sentence under
In the instant case, at the time of the original sentencing, the trial judge noted that the defendant had admitted to six prior felonies, including assault on a police officer. He noted that despite all the prior sentences and chances, the defendant chose to commit yet another offense by robbing someone. The trial judge found the defendant to be lawless and deserving of no mercy. He noted the defendant put a gun to the victim‘s face and threatened the victim while the victim begged for his life. He commented that “[s]ticking a gun in somebody‘s face is about as serious as you can get.” The trial judge further stated that any sentence less than the imposed maximum would deprecate the seriousness of the offense.
Although the defendant‘s maximum enhanced sentence is severe, his sentence is commensurate with, rather than grossly out of proportion to, other similarly situated defendants. As noted by the Louisiana Supreme Court, “extended imprisonment is not needless and purposeless, but done to negate the [defendant‘s] opportunity to commit such crimes in the future.” State v. Donahue, 408 So.2d 1262, 1267 (La. 1982). In Donahue, supra, the Louisiana Supreme Court upheld defendant‘s 198-year sentence for two counts of armed robbery.
Based on the present facts and similar cases in the jurisprudence, the defendant‘s 203-year sentence is not unconstitutionally excessive. The defendant, who had numerous prior felonies—including illegal use of a weapon, assault, and robbery—pointed a gun at the victim‘s head and threatened to kill him. We find no merit to this assignment.
ASSIGNMENT OF ERROR NUMBER THREE
The defendant contends his additional five-year sentence imposed under
Without addressing the Apprendi argument, the State notes there is a split among the circuits on whether the five years under
In Apprendi, supra, the United States Supreme Court held that the constitution requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63. The Supreme Court later clarified that the “relevant `statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296, 303-304, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004) (emphasis in the original). The failure to submit a sentencing factor to the jury does not require an automatic reversal but rather subject to a harmless error review. Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006).
In the context of Apprendi, this Court has determined that
In Walker, supra, the defendant argued his due process rights were violated when the factual issue of whether the armed robberies were committed with a firearm, for purposes of
In State v. Daniels, 03-1621 (La.App. 3 Cir. 5/12/04), 873 So.2d 822, writ denied, 04-1802 (La.11/24/04), 888 So.2d 227, the Third Circuit likewise deduced the jury‘s factual finding that the defendant committed the armed robbery with a gun for purposes of applying the enhanced sentencing provisions of
Similarly, in the bill of information in this case the State specifically charged the defendant with committing the armed robbery while armed with a gun. The bill of information was read to the jury at the beginning of trial. Thus, the jury was informed the State sought to prove the defendant committed an armed robbery while armed with a gun. When the jury charges were read, the jury was again advised that the defendant was charged with armed robbery “in that he did rob Bryon McLeod while armed with a dangerous weapon, to wit: a gun.”
Further, the only evidence of a dangerous weapon presented at trial was that of a gun. McLeod testified the defendant pulled a gun, which he held in his left hand, and pointed the gun to the back of McLeod‘s head. McLeod identified the gun found on the defendant at the time of his arrest as the one the defendant used during the robbery.
We note that in both Walker and Daniels, the additional five-year sentence under
In Walker, this Court specifically stated:
Although
La. R.S. 14:64.3 requires a factual determination, the trial court‘s imposition of two five-year sentences underLa.R.S. 14:64.3 . . . did not increase the penalty beyond the maximum term of ninety-nine years prescribed by the armed robbery statute. Therefore, under the holding in Apprendi, there was no due process violation in the trial court‘s application ofLa.R.S. 14:64.3 to the instant case.
Although the Walker court narrowly stated its holding, the fact that the defendant‘s five-year enhanced sentence in the present case resulted in a penalty beyond the statutory maximum for armed robbery does not change the analysis or result. As stated above, Apprendi requires that any fact that increases the penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.
In the present case the jury was advised, both at the reading of the bill of information and during the reading of the jury charges, that the State sought to prove the defendant committed an armed robbery while armed with a gun. The State then presented evidence at trial of a gun. Because the jury was aware the State sought to prove the defendant committed an armed robbery while armed with a gun and the only evidence of a dangerous weapon was of a gun, we deduce that by returning a verdict of “guilty of armed robbery” the jury found the dangerous weapon used in the armed robbery was a gun. Thus, whether a gun was used in the armed robbery, which was used to increase defendant‘s sentence beyond the maximum statutory penalty provided by
DECREE
For the foregoing reasons, the conviction and sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.