State Of Louisiana VS Clifford Joseph Etienne, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 1108 STATE OF LOUISIANA VERSUS CLIFFORD JOSEPH ETIENNE JR DATE OF JUDGMENT DEe 2 3 Z008 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NO 09 05 0506 SEC 8 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILSON FIELDS JUDGE Doug Moreau District Attorney Kory J Tauzin Jacyln C Chapman Baton Rouge Louisiana Counsel for Plaintiff Autumn Town Counsel for Defendant Baton Rouge Louisiana Clifford Honorable BEFORE State of Louisiana SENTENCES VACATED i f7 I Joseph Etienne HABITUAL OFFENDER ADJUDICATION REMANDED FOR FURTHER PROCEEDINGS C Appellant KUHN GUIDRY AND GAIDRY JJ CONVICTIONS AFFIRMED Disposition Appellee c lI 4 AND KUHN J Defendant Clifford with the following offenses violation of La R S La Joseph Etienne RS 14 94 one 14 95 1 two violation of La of armed counts RS count one weapon violations of La R S a count of felon in ofiIIegal robbery 14 64 and 3 64 14 27 and 64 2 murder violations of La RS violation of La R S second degree kidnapping violations of La A defendant was to to competent Count 1 proceeded guilty and not sanity commission charges original pleaded following verdicts on a jury those a on of 2 3 firearm a violation of a dangerous a attempted carjacking first attempted one count 14 27 and 30 not guilty by Prior by a to trial and of degree attempted two counts reason of insanity court to all determined the State dismissed the counts The jury returned the counts Illegal Count 2 Armed Count 3 Attempted carjacking guilty use of a weapon robbery with a Count 4 guilty firearm of Lydia Attempted first degree attempted second degree murder Key guilty murder of Barron Bryant guilty of Count 5 Attempted first degree murder of Richard Gill attempted manslaughter guilty Count 6 guilty of Attempted second degree murder of Alex Griffin attempted manslaughter Count 7 Armed robbery with a firearm of Alex Griffin 2 of convicted felon and defendant remaining nine Count 1 a R S 14 44 1 firearm the count convened and the trial stand trial possession of trial before was ofa weapon while armed with one 14 27 and 30 A degree murder Defendant use possession of two counts of second a charged by grand jury indictment was guilty of Count 8 Second degree kidnapping of minor K B Count 9 Second degree kidnapping of minor IB guilty guilty subsequently sentenced defendant as follows The trial court Two years at hard labor concurrent with any other sentence served Count 1 being Fifty years at hard labor probation parole or suspension of Count 2 that this offense sentence sentence this be served without benefit of by five which would The trial sentence committed with was enhanced to noted firearm and ordered the a years in addition to the run court consecutively for a previously stated total of 55 years on count Ten years at hard labor to be served without benefit of Count 3 probation parole or suspension of sentence to run concurrently with Counts 1 and 2 Count 4 1 Twenty years at hard labor to consecutively run to Counts 2 and 3 Count 5 Five years at hard labor to run consecutively 3 and 4 and consecutive to any time being served Five years Count 6 probation parole or hard labor at suspension to be of Fifty and sentence or suspension of with Counts 1 2 3 4 5 and 6 five years in consecutively to being run concurrently served years at hard labor to be served without benefit of probation parole committed with Counts 1 2 served without the benefit of with Counts 1 2 3 4 5 and 6 and other time Count 7 to a The court firearm and ordered this addition for sentence a to the on to run concurrently noted that this offense sentence to previously total of 55 years and was be enhanced stated sentence to this count Count 8 Ten years at hard labor to run consecutively to Counts I 3 4 5 6 and 7 and consecutively to any other time being served Count 9 Ten years at hard labor 3 4 5 6 7 and 8 and The defendant State instituted adjudicated a to run consecutively habitual second by run consecutively to any offender to 2 Counts 1 2 other time being served proceedings seeking to have felony habitual offender Defendant admitted the 3 allegations of the habitual offender bill and the trial for his conviction sentence Count 2 to on for Count 2 The trial 1 was making 1 10 years the total noted that defendant s total court appeals citing the following as Whether defendant there additional 55 years defendant sentences for 60 years these convictions totaled Defendant an court resentenced was denied his insufficient evidence error due process of law as support the guilty verdicts in right to to Counts 8 and 9 2 Whether defendant was denied his right to a fair trial and his right due process of law when the trial court denied a motion for change of venue and permitted the prosecution to argue highly prejudicial and irrelevant facts of an unrelated murder to 3 Whether defendant State made right s to due process improper and prejudicial was violated when the comments throughout the trial 4 Whether defendant trial jury 5 court at allowed trial due process was violated when the incorrect 911 transcript to be shown to the right s an to containing prejudicial404B information Whether defendant s total sentence sentenced to 160 at hard labor 6 Whether there are any is cruel and unusual as he discoverable under La C CrP errors was 1 art 920 2 FACTS On August loan store located Baton 1 Rouge The Louisiana 10 on Key 2005 the was Lydia Key corner working Appellate Project was working at the Ready Cash payday of Florida Boulevard and Acadian a 5 00 to 7 00 p also filed a brief excessive sentence 4 on m Thruway in shift while her four minor defendant s behalf raising the issue of room of the holding ages from ten to three years old ranging in children Key s m defendant entered the open the door to the room approximately gun demanded that a located At store children were watched television in another Key 6 35 p also in that When room where the safe Key failed to the fired Key Key room children had fled the s Defendant demanded that Key room just prior open the safe and gave defendant the money in the cash drawer near Key went outside to contact a police officer who to the shot give him all the the gain being money her and also gave him the money orders and checks that she retrieved from the safe and to was to open door defendant fired his weapon into the door and then kicked the door access and lobby Defendant left the was across the store street at a service station Neil Porter an Exxon station report of an an officer with the Baton the across armed robbery street from the in progress Rouge City Police Department Ready Cash spoke behind the with When Officer Porter announced his presence Officer Porter gave chase and vicinity who responded Beauty Giant briefly ran store gone into the the vehicle vehicle with P C a to the armed through a soon store wooded saw s while her street parking lot defendant fled joined by other police officers area two was in the keys to a gray vehicle owned parked outside the by Phyllis Carter who had children ages twelve and six remained in twelve year old that the a robbery radio call The gray vehicle Carter gun was at Key visibly Officer Porter crossed the Officer Porter also located defendant in the Key store Defendant when he received Officer Porter also observed panicked running from the Ready Cash lobby and store was son were 5 testified that defendant entered the not in the ignition and immediately When defendant exited the gray vehicle exited he aimed his weapon Rouge Police Officers Barron Bryant and Richard Gill Although defendant squeezed the trigger of his at Baton who had joined the weapon the weapon pursuit jammed and failed to fire Defendant then ran to a gold Pontiac Grand and forced its driver Alex Griffin his fiancée two young s got into the car and out at children K B began to Am opened the gunpoint despite Griffin and J B drive away in were protests that in the vehicle Defendant at reverse high a approximately sixty feet before the vehicle stalled approached the vehicle defendant It was Defendant did with weapons drawn and a of speed curb and apprehended 1 977 00 in cash store not from James McCoenico may have been rate struck later determined that defendant had stolen from the Ready Cash car s Defendant drove Officers door of the testify an at trial However the defense presented testimony expert in drug rehabilitation opining that defendant suffering from a cocaine induced psychosis during this incident SUFFICIENCY OF THE EVIDENCE Defendant asserts that there convictions for the second defendant children were In must alleges the insufficient degree kidnappings of record fails to support a evidence K B and J B finding that to support his Specifically he knew the two in the vehicle when he took it reviewing claims challenging the sufficiency of the evidence this consider whether after prosecution the crime was viewing the evidence in the light most favorable court to the any rational trier of fact could have found the essential elements of beyond a reasonable doubt Jackson 6 v Virginia 443 U S 307 3 I 9 99 S Ct 2781 61 L Ed 2d 560 1789 2 La Tabor 2007 0058 p 1979 see 1st Cir 6 8 07 App Louisiana Revised Statutes 14 44 1 A Second also La C Cr P art 821 B State v 965 So 2d 427 434 provides in pertinent part degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is 5 Imprisoned dangerous a armed with a weapon or or dangerous kidnapped when the offender is armed with leads the victim to reasonably believe he is weapon B For purposes of this Section The forcible place another to 3 The The seizing and carrying of any imprisoning provisions of this does any not require that particular length State 681 So 2d 1007 In children or statute forcible v secreting of any apply when anyone occurrence Alex Griffin the distance traveled occurrence mentioned in Steward 95 1693 p 10 La App 1st Cir 9 27 96 establish he was aware 1013 in the vehicle when he took it the driver of the vehicle in the vehicle running person during the forcible seizure be According the windows and doors Griffin also testified that to defendant testimony cited by defendant when Griffin relayed were one mentioned in Subsection A The support of his argument that the State failed were person from or Subsection B combines with anyone statute kidnapping is were to to points the to the of portions of Griffin s defendant that the children closed and the although defendant looked right 7 testimony the at engine was him when he telling was him about the children in the vehicle defendant looked high or something According gray car looked that to was parked beside Griffin and at testimony of Griffin the hesitated Griffin admitted that vehicle could read his s going was gun testimony of the State to the free witness 217 will overturn s v to not a not immediately get kept yelling including or reject were 7 495 661 So 2d 464 determination v credibility 653 So 2d 1288 Further in was out out of the voice he s of his vehicle and he feared at him Griffin s the or he 1st Cir 1 5 99 guilt State reweigh or v Glynn 13 10 writ denied reviewing the evidence we On to any 745 So 2d appeal this the evidence to 94 0332 p 32 95 1 153 cannot say irrational under the facts and circumstances Ordodi 2006 0207 p 14 La 11 29 06 able testimony of 774 So 2d 971 of witnesses was As the trier of fact in part the App the jury accepted that in the vehicle in whole fact finder s determination of 1 st Cir See State the hear defendant against defendant indicates Johnson 99 0385 p 9 La assess Defendant then out Get the fuck to not get into the discharge witnesses accept him he could writ denied 2000 0829 La 11 13 00 223 court App State telling although defendant that children communicate was before immediately get but defendant to The verdict rendered jury and car Griffin testified he did lips because of the two children defendant his he watched defendant La 10 6 95 that the presented La to jury s them 946 So 2d 654 662 Despite the closed windows and doors of the vehicle and the running engine Griffin The jury had a was able to understand that defendant wanted reasonable basis to to take his vehicle conclude that defendant s initial 8 hesitancy in seeking Griffin the vehicle s were Accordingly vehicle in due we light of Griffin s protests and reluctance the fact defendant knew children to to give up inside the vehicle were conclude the evidence supports these convictions for second degree kidnapping assignment of error is without merit This CHANGE OF VENUE Defendant contends the trial venue and facts of an prosecution unrelated murder allowed improperly Officer the permitting to erred in court to set forth Specifically make references The record reflects defendant filed a motion for a There is before the trial After no same day as motion for to the were in the was murder of these offenses change of venue was indication in the record that this motion the record we find that any of the references to Officer Melancon presented of However withdrawn was by resubmitted court reviewing were change defendant claims that the State entry of February 23 2006 indicates that this motion the defense a and irrelevant highly prejudicial throughout the trial Terry Melancon which occurred the the minute denying in a manner that s at no murder time did defendant We note merely eXplained why vicinity of Ready Cash at so object to that these references many police officers the time defendant committed the armed robbery of Key An objected irregularity to at the to preserve or error cannot be availed of after the verdict unless it time it occurred since an error for a appellate review 9 contemporaneous La C E art objection 103 A 1 is was required La C CrP art 841 A State Trahan v 93 1116 15 p La 1st Cir 5 20 94 App 637 So 2d 694 703 Moreover we potentially that any be considered harmless references would evidence note supporting defendant s testimony of State a victim is sufficient Johnson 94 1561 v 15 3 writ denied 95 2988 La in this presented unattributable Sullivan v case to 4 p we La any references were victims of the offenses establish the elements of the offense to App Cir 10 6 95 st 664 So 2d 141 144 Thus under the circumstances in this matter Melancon concerning Deputy 279 the previously discussed guilty verdicts rendered Louisiana 508 U S 275 admission of these supported by the eyewitness many who 669 So 2d 426 96 find the As error convictions is testimony of multiple witnesses including The erroneous 113 S Ct 2078 208 s are surely murder 124 L Ed 2d See 82 1993 IMPROPER AND PREJUDICIAL COMMENTS Defendant maintains the State elicited prior a conviction firearm by a brother in law there were despite the fact that the State convicted felon Specifically Brown Anthony defendant could dropped on cross the prosecutor any firearms in defendant understanding testimony concerning defendant not s home own a the s charge of possession of examination of defendant s questioned the witness whether Brown responded that it firearm because he was a was his convicted felon The record reflects defendant failed to indicated that defendant As we stated was a previously an object convicted felon irregularity lO or or error to Brown s response which ask for any type of instruction cannot be availed of after the verdict unless it is objection 103 A objected was required La C Cr P 1 to at to preserve art the time it occurred since an State 841 A for error a contemporaneous La appellate review Trahan 93 1116 atp v 5 C E art 637 2d So at 703 Because defendant failed to preserved for defendant as a Moreover appellate review convicted felon to this object not was the issue has testimony we that Brown note to responsive the defendant residence s which explanation that defendant could conviction was an be attributable to anticipated not own a a yes or reference was aware no See State v the Brown answer firearm because of his to of firearms s previous felony explanation offered by the witness and such reference the prosecutor been question posed by prosecutor The prosecutor merely inquired whether Brown in s not cannot Fowlkes 352 So 2d 208 212 La 1977 INTRODUCTION OF 911 TRANSCRIPT Defendant urges the trial erred in court transcript which contained prejudicial La C shown to the jury defendant is character acts may a attributed courts may man 404 B questionable information to 911 be to defendant which made it incorrect not admit evidence of other crimes art 404 B be introduced when it relates constitutes of the present art of bad character who has acted in But under La C E gestae that E a Specifically defendant contends that the transcript contained extraneous comments Generally allowing an proceeding 1 to gestae II show conduct act or events a conformity with his bad evidence of other crimes wrongs integral part of the Res to formerly referred to transaction that is the as or res subject constituting other crimes are deemed admissible because are so nearly connected to the charged offense them A proximity in time and location is required between the charged offense and that the State could close they accurately present its not to insure the other crimes evidence crimes evidence is not to the story of the crime in time and on State place that the purpose served depict the defendant as trial v without reference case a bad by proving its immediate man to by admission of other but rather context to complete of happenings Colomb 98 2813 p 3 La 10 199 near 747 So 2d 1074 1076 per curiam The utterances spontaneous the crime gestae doctrine in Louisiana is broad and includes res but also they heard or observed before 407 So 2d 693 698 incorporates a events La evidence of as res all 4 during 981 Integra momentum 747 So 2d at 1076 at 4 199 1145 La 734 So 2d 792 Defendant transcript of the act res completeness single s 981 State v See State Supreme course of conduct Meads argument on v s case Colomb 98 Court has held that p one or more v 7 La 10 15 99 this issue is twofold but Washington La App not 407 1st Cir 748 So 2d 465 First defendant claims the 911 call is inaccurate because it contains threats l2 Kimble of conduct is admissible State 98 1388 797 writ denied 99 1328 v without which the State The Louisiana a State a evidence in Louisiana gestae and cohesiveness course what to after the commission of the crime if the trial of the accused for the commission of of the crimes committed in his So 2d 1138 or multiple crimes committed in gestae after the commission of is evident under the circumstances rule of narrative would lose its narrative 2813 at p or testimony of witnesses and police officers pertaining continuous chain of also and declarations made before only not purportedly made by defendant toward Key yet Key threatened her asserts testimony contradicted the fact defendant s the State failed to provide Prieur 277 So 2d 126 La 1973 notice of this other crime and La CE accuracy of the Regarding the art 404 B Sanders he could hear tape Key as she the was on threatened by defendant admissibility as defendant The these jury statements when he robbed the a the Key made were Ready Cash and reasonable basis s threats the armed robbery Millen 2002 1006 p 11 Further subject 79 to a So 2d we note harmless 100 App that the error 104 determining harmless La support the actual 911 was not as an erroneous 14 2 that Key its to armed robbery threatened the evidence of integral part of the commission of to provide Prieur notice 03 State v 845 So 2d 506 5 4 previously is whether the verdict 13 was was admission of other crimes As directly opposed the armed because Finally required 1 st Cir curiam statements have recalled whether during finding a to phone with the 911 analysis State v Morgan 99 1895 per error the not used the weapon to was not on v testimony According Further the fact that defendant against Key constituted the State was and may during the commission of this offense defendant she weight of the evidence that aware threatened her specifically clearly provides was call s we note Key testified The fact that more to goes Key Moreover with him phone State 1 background making threatening voice in the played for the jury was operator a required by as the State introduced transcript from Thomas Sanders the 911 operator who received toward Second defendant during the commission of the armed robbery p 5 mentioned evidence is La 6 29 the actually rendered in the test 01 for case was surely unattributable to the at 104 see As also Sullivan v s at 279 113 S Ct at 208 I convictions supported by the are Bryant and Gill testimony of these witnesses described the and Griffin The committed this date determining defendant In it is obvious the witnesses defendant 99 1895 at p 6 791 So 2d Morgan of Key Carter Griffin and Officers Porter eyewitness testimony offenses v Louisiana 508 U S discussed previously on See State error jury chose Under the facts of this case to any the guilty verdicts were testimony of potentially erroneous transcript would be considered harmless surely unattributable the to the State s admission of the light of Key In error defendant guilty of nine separate was accept the 911 acts testimony s admission of the 911 transcript This assignment of error is without merit REVIEW FOR ERROR In 920 2 conducting we note the a existence of to La pursuant involving defendant following defendant habitual second offender proceedings seeking felony habitual offender based attempted armed robbery Defendant stipulated habitual offender bill At no specific allegations of the bill Prior error an error instituted adjudicated review of the record for The record indicates that adjudication State a or to the time did the trial his on a s convictions have or stipulates information the trial to the court must the defendant 1992 conviction for allegations contained in the court advise defendant of the rights jurisprudence and codal authority have held that before pleads guilty art habitual offender s to CCr P allegations in a habitual advise the defendant of the l4 a defendant offender bill of specific allegations contained in the habitual offender bill of information his truth thereof and his Mickey La 604 So 2d 675 1993 Such wherein the State was no the trial or his rights s was v and La La R S on defendant to s at 678 the State not v was a plead hearing the defendant s However in the present habitual offender advise him of the to writ denied 610 So 2d 795 charges in the habitual offender bill if there 2d So as l 15 529 1 D deemed harmless when defendant did Thus status we case cannot say specifics of the habitual offender bill harmless we defendant vacate remand the matter assignments of error concerning his CONVICTIONS AFFIRMED AND See 1st Cir 1992 App Mickey 604 failure Accordingly sentences 678 the hearing court remain silent be tried to proved the truth of the allegations of the bill and See State identity to errors were guilty or stipulate to there right right SENTENCES for habitual s further sentences are offender adjudication proceedings and Defendant s pretermitted HABITUAL OFFENDER ADJUDICATION V ACATED REMANDED PROCEEDINGS 15 FOR FURTHER
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