State Of Louisiana VS August C. Payne, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 KA 0167 STATE OF LOUISIANA VERSUS AUGUST C PAYNE JR f Judgment Appealed Rendered September 12 2008 from the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Trial Court Number 02 05 0205 Honorable Louis R Daniel Judge Presiding Doug Moreau Attorneys for Appellee Jesse Bankston State of Louisiana Dylan C Alge Baton Rouge LA Kathryn Flynn Simino Baton Rouge LA BEFORE CARTER cJ Attorney for DefendanUAppellant August C Payne Jr WHIPPLE AND DOWNING JJ WHIPPLE J The defendant with unauthorized 14 64 both charges trial by jury court the defendant The defendant the defendant count two was found guilty adjudicated sentenced ordered were The defendant s third denial of his motion finding of sufficient evidence denial of his motion the defendant s to to and one After a guilty of count hard labor On imprisonment was sentenced or at to life imprisonment suspension of sentence concurrently as 1 error suppress statements and evidence to to violation of LSA R S a appeals essentially assigning now guilty to suppress count on not felony habitual offender On probation parole served to be charged count two on the enhanced count the defendant sentences court a as to ten years hard labor without the benefit of The plea of a denied the defendant s motions was was robbery violations of LSA The defendant entered responsive offense of simple robbery 14 65 at The trial bill of information charged by was vehicle and armed 4 68 and LSA RS use Jr Payne motor 14 one of C a RS the August the trial the jury s support the convictions and 3 the trial court s For the we reconsider sentence convictions habitual offender following and adjudication 2 reasons affirm sentences STATEMENT OF FACTS At approximately 6 05 a m Rouge Police Department received black male wearing dark clothing and drove away in Schmidt who was a on a and November 25 dispatch regarding a skullcap white Chevrolet Suburban sleeping 2004 in the vehicle After towards the interstate away Schmidt used a the police 2 a gained entry into occupied by the victim Dustin demanding Schmidt southbound telephone robbery committed by The perpetrator perpetrator stopped the vehicle and ordered Schmidt observing the perpetrator drive a officers of the Baton at to on a s wallet the exit the vehicle South Acadian nearby After Thruway restaurant to contact Glenn Corporal Officer Phipps and Gautreau Clay travelling were northbound toward the last point of sight of the vehicle when they spotted Suburban The driver a repositioned their unit was s bar lights and siren momentarily lost sight of Education Street wearing a As the officers skullcap pursue the Suburban the driver made to Phipps activated the unit The officers black male they observed as the officers the vehicle a Officer U turn pursued As the officers the vehicle approached sitting in the roadway behind the Suburban a a building The officers exited their unit approached the Suburban and noted that it had been abandoned with the engine still running The officers used their radios instruct other officers in the area to The defendant was seen be running and on was the lookout for a to black male suspect captured about three blocks away from the location of the abandoned Suburban ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In combined argument for the first and second a defendant contends that there accordingly suppressed statements any probable no made or arrest question characteristic used was to was the fact that he found cause seized running near the The defendant further claims that identify him as error should area race was the use at the trial LSA C Cr P on art evidence seized adversely affected may the merits on the against move ground that it to suppress any was a search without search may be conducted without a a warrant warrant 3 S 5 unreasonable searches and evidence from unconstitutionally obtained 703A The State bears the burden of proving the during only the suspect of the Louisiana Constitution protect persons A defendant be where the The Fourth Amendment to the United States Constitution and article I seizures the The defendant argues that the tree was of for his arrest and that physical evidence constituting fruits of a poisonous as sole basis for his vehicle in was assignments LSA C CrP admissibility of art when it is made incident 703D to a A lawful Chimel arrest Ed 2d California 395 US 752 v 685 1969 Probable circumstances either personally cause known trustworthy information reasonable and caution in believing that the person Fisher 97 1133 p 7 La 9 9 98 findings during should p 6 not La a to be disturbed unless are 775 So 2d 1022 1 26 00 104 148 L Ed 2d 62 App 1st Cir 9 20 06 to the evidence clearly 1029 944 So 2d 588 arresting officer to are a man cert v to State a of ordinary State crime court v factual s weight great and Casey 99 0023 v denied 531 U S 121 S 840 Ct Brumfield 2005 2500 p 5 writ denied 2007 0213 593 and facts of which he has The trial entitled erroneous the or justifY 2d 1179 1184 See also State 2000 Ct 2034 2040 23 L exists when sufficient are 720 So they arrest to 89 S be arrested has committed to suppress hearing 762 763 La La 28 9 07 964 So 2d 353 We find that the record establishes that probable cause existed herein for the law enforcement officers belief that the defendant had committed the offenses According Issue the to the defendant hearing early morning hours was in on foot abandoned e other individuals IAt was a suppress in the Specifically a Despite the cool weather the defendant black male were seen the time ofthe of time amount question the officer s area I The officers had hearing Corporal Phipps was sweating when he of the driver of the vehicle description wearing dark clothing in the brief abandoned and the officers observation of the The defendant matched the captured question i pants was of the vehicle after it defendant to running through private backyards between the initial observation of the vehicle in approach was observed motion within three blocks of the location of the abandoned Suburban shortly after the vehicle elapsed testimony presented during the at No other vehicles and probable cause to recalled that the defendant was no believe wearing dark at the time of the arrest but could not recall the color of the shirt the defendant was wearing Sergeant Tillman Cox who was present police station also testified at the hearing but could 4 when the defendant not specifically was transported recall the defendant s to the attire that the defendant trial court one was the person who stole and abandoned the vehicle properly denied the motion and two are to suppress Assignments Thus the of error numbers without merit ASSIGNMENT OF ERROR NUMBER THREE In his third assignment insufficient evidence and as to support the verdicts of unauthorized use of a the time of the offenses and the sequence of events the defendant in the back of the saw vehicle motor testimony s that insufficient there as was little physical evidence Finally the defendant contends that he black cap In at preceded his appellate Supreme court 1979 v light most not support the convictions any black wearing When State or a a conviction to a art the 821 is whether the evidence prosecution Brown 2003 0897 p 2781 appellate review adopted by the 22 analyzing circumstantial evidence LSA was sufficient to convince La RS when 12 4 proved beyond 05 15 438 a a 907 So 2d 1 provides that the satisfied that the overall evidence excludes every reasonable trier of fact must be hypothesis of innocence 2 14 03 v clothing by the standard enunciated by the United That standard of favorable support rational trier of fact that all of the elements of the crime had been reasonable doubt to police unit before the Virginia 443 U S 307 319 99 S Ct Legislature in enacting LSA C Cr P viewed in the was to of the evidence to is controlled Court in Jackson 2789 61 L Ed 2d 560 as arrest reviewing the sufficiency Louisiana States the time of the was The defendant further argues that the evidence photographic lineup took place 18 was telephone call The defendant further contends that the record is unclear whether the victim was the defendant argues that there error The defendant contends that the victim simple robbery unclear 911 to of State v Graham 2002 1492 845 So 2d 416 420 5 p 5 La App 1st Cir The offense of unauthorized part the intentional as LSA R S consent taking 14 force or testified Suburban at establishment parking 2 not at trial According for a to Crawford music band that had Meanwhile individuals Crawford decided temporarily equipment Schmidt a m The performed keys were Schmidt closed his eyes and Crawford owner s by use of was loaded in the Crawford and the victim Dustin Schmidt as Sometime after 2 00 running vehicle without the of the vehicle involved in the incident owner lot and waited for Crawford was motor a pertinent vehicle is defined in that is in the immediate control of another or the time of the offense members of were motor LSA R S 14 65A intimidation question of use William L Crawford Jr the in a Simple robbery is the taking of anything of value 4A 68 from the person of another or of use Crawford that sat in in the night a local the Suburban in the ignition but the engine eventually fell asleep began socializing with as he waited a group of left with the group Sometime initially after Schmidt fell assumed it was Schmidt realized that Schmidt pulled began out complied a gun to get someone entered the vehicle an began driving the vehicle unknown male had entered the vehicle and and demanded that Schmidt hand opened the all he had wallet Schmidt of the vehicle over was driving was able to look his wallet After Schmidt examined the responded positively contents and asked and the assailant told Schmidt stated that the assailant drove for approximately five minutes before allowing Schmidt testified that he Schmidt question the unknown male who eventually stopped the vehicle was out asleep in the Suburban while he waiting Crawford but after the person the assailant Schmidt if that him to to leave Schmidt at directly at the 2crawford and Schmidt admitted to consuming also testified that they had DWI convictions 6 to exit the vehicle assailant beer on the s face day Schmidt Schmidt ran to a of this incident and both nearby and reported the incident giving During the 911 telephone call assailant statement Hugo called 911 restaurant of the facts Boss cologne removed from his belonging to Schmidt gave When the defendant an orange colored knife taken into and Schmidt confirmed that he identified the Suburban a description clear and concise custody a bottle of assortment of coins an of the were Schmidt identified the abandoned Suburban pockets Crawford was a although he did police cars were in the area view the occupants of the not as when police cars During direct examination by the State Corporal Phipps initially responded positively when asked if other officers had allowed Schmidt to after his arrest he could not also Phipps defendant During cross recall if Schmidt agreed during was not wearing examination however actually cross black saw scene of the defendant s clothing questioned he running because he am saw the to in his truck and discovered that his truck to the time of his was not police Crawford returned telephone had been at left in the vehicle know and he the was incident Miranda that v had stated that Corporal anything was there Crawford used the 444 445 1966 7 86 S the Suburban the defendant Miranda3 scared longer Crawford s at about the truck and that parking lot where was no occurred Arizona 384 U S 436 arrest advised of his he had left Schmidt Because his cellular telephone of an associate check his messages and retrieved the message from the the arrest kept separate from the defendant after he The defendant stated that he did Around 6 00 the defendant after the when Schmidt identified arrest rights was Corporal Phipps Rouge Police Department was present Detective Beck confirmed that Schmidt Detective Beck the defendant examination with the defense attorney that the Detective Mark Beck of the Baton the see police informing him of associate ct 1602 1612 took him to 16 L Ed 2d 694 the police station and the been in the truck police asked Crawford specifically Crawford in the console cologne that he had several pieces of equipment that described bottle of a thin orange knife with a pocket change Although these it and describe any items that had to were of Velcro piece a eventually returned items were Boss Hugo to in the truck before the offense on Crawford were never recovered At 8 19 approximately in a m Schmidt identified the defendant was photographic lineup saw at the police station who committed the offense the person as Schmidt testified that the last time he lineup identification a the defendant before the when Schmidt exited the Suburban at photographic the defendant s request As the trier of fact testimony of Cir any witness free to jury is State the witnesses matter is Richardson 459 So 2d the trier of fact defense that hypothesis called upon a of the a determination of the weight of the evidence When a a case hypothesis reasonable doubt State v State 1992 In the absence of internal contradiction sufficient support for a s testimony v A or matters its sufficiency presented by the reviewing or 61 court is La not whether the conviction is 1324 La irreconcilable conflict with if believed requisite factual conclusion 8 1st credibility of the Smith 600 So 2d 1319 to the witness App Moten 510 So 2d 55 decide whether it believes the witnesses one La part the guilty unless there is another writ denied 514 So 2d 126 La 1987 evidence 38 not of innocence falls and the defendant is weight of the evidence in or involves circumstantial evidence and contrary physical in whole reject or conflicting testimony about factual upon reasonably rejects that raises to one at 38 hypothesis 1st Cir depends accept Richardson 459 So 2d 31 v Moreover where there is 1984 the resolution of which App a State by v the trier of fact is Thomas 2005 2210 p 8 La App 4 27 07 1st Cir 6 9 06 938 So 2d 168 supports the convictions herein the record reflects that the defendant abandoned vehicle Items found police was La running in the vicinity on the defendant owner at the time of the of the found was arrest one by matched the of the Suburban of the items that he had left in Schmidt who had observed and conversed with the defendant in the the vehicle identified the defendant in vehicle discovered As to count shortly after the abandoned but running vehicle specific descriptions by the individual who drove the vehicle testified that use writ denied 2006 2403 955 So 2d 683 We find that the evidence the 174 they did the vehicle not the evidence in the record most trial as the give him permission not testimony presented Schmidt s wallet before Viewing the evidence in the light at parking lot Schmidt and Crawford know the defendant and did the and photographic lineup of the out As to count two the defendant took a sufficiently supports to trial established that at him out of the vehicle ordering favorable to the prosecution we find that the convictions Assignment of error number three also lacks merit ASSIGNMENTS OF ERROR NUMBERS FOUR AND FIVE In a combined argument for the fourth and fifth defendant argues that the trial sentence under LSA R S departure 15 prior convictions was a defendant failing 1 529 excessive and in following prior as a possession with third In imposed on convictions to distribute On find the failing to court the mandatory life grant erred in notes that error a downward denying his only one of his appeal the defendant challenges count two were felony offender intent to support the defendant crime of violence the enhanced sentence The erred in The defendant also contends that the trial motion to reconsider sentence only court assignments of considered in the September 24 adjudication 1999 convictions marijuana and possession 9 of the with intent for to and April distribute cocallle burglary The third offense crime of violence the convictions 1992 27 possession with intent RS offenses are years or punishable by twelve 15 529 1A I S ten LSA RS 40 967B 4 b 40 966B 3 to LSA R to distribute b ii LSA R S 767 La 1979 grossly disproportionate the to held that Generally limits may still be excessive a a to sentence society it is Hurst 99 2868 p the not be set In State mandated Court v 798 So sentences aside as as to 2d 962 or shock A trial are the prohibits State is nothing v imposition Sepulvado more considered in one s sense 797 So than the grossly light of the of justice State v 2d 75 83 writ denied judge is given wide discretion within statutory limits and the sentence in imposed excessive in the absence of manifest abuse of discretion 10 11 797 So 2d Dorthey 623 So recognized that if or at 83 2d 1276 a by the Habitual Offender acceptable goals of punishment the mandatory life a A sentence is considered 1st Cir 10 3 00 App La La 10 5 01 Hurst 99 2868 at pp Supreme disproportionate so 10 imposition of should Thus pursuant is considered excessive if it is severity of the crime imposition of pain and suffering 2000 3053 LSA that is within the statutory sentence disproportionate if when the crime and punishment harm Law simple burglary 14 2B 23 to subject was Supreme Court in The Louisiana punishment 2d 762 needless the 14 62B Article I section 20 of the Louisiana Constitution 367 So marijuana and cocaine LSA R S years a sentence imprisonment of excessive simple simple robbery is and more the defendant of counts Dangerous Substances violations of the Uniform Controlled are two the instant enhanced offense punishable by imprisonment of convictions convictions for trial 1280 81 judge Law makes that the 1993 the Louisiana determines that the no and is punishment measurable contribution sentence amounts to purposeful imposition of pain and suffering 10 La grossly nothing out more to than of proportion to the severity of the crime he is duty bound to reduce the not be after and in Legislature crimes classified punishable prerogative s to determine the found to be presumption are that would that the determination and purely a legislative length ofthe courts that they court crimes is as Moreover felonies as unless punishments are one holding in Dorthey was made only light of express recognition by the definition of acts which is the However the constitutionally excessive sentence to are sentence function It imposed for charged with applying these unconstitutional Dorthey 623 So 2d at 1278 rebut To the constitutional the defendant is he must mandatory in this context unusual circumstances this defendant is failure sentences that culpability of the offender the to assign sentence mlmmum IS dearly and convincingly show that which exceptional the a that because of means victim of the tailored to the meaningfully are gravity of the legislature s offense and the circumstances of the case State Johnson 97 1906 p 8 La 3 4 98 v 94 1636 Young Plotkin J nature the La 5 6 pp App 4th Cir A trial concurring judge of the instant crime or on the record before that he is exceptional tailored his case to Thus sentence denying was or us that the 10 26 95 may not of past crimes presumption of constitutionality Based 709 So 2d 672 as 663 rely solely quoting State 2d 525 So upon the non evidence which justifies Johnson 97 1906 we 676 at p 7 709 v 528 violent rebutting So 2d at 676 find that the defendant has failed to show mandatory life sentence is not meaningfully culpability the gravity of the offense and the circumstances of the we do not required find that downward in this case departure from the Accordingly the trial the motion to reconsider sentence These court assignments of mandatory life did not error err in also lack merit CONVICTIONS HABITUAL OFFENDER SENTENCES AFFIRMED 11 ADJUDICATION AND
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