State Of Louisiana VS Robert Latroy White
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 KA 1766 JAI @ STATE OF LOUISIANA VERSUS ROBERT LA TROY WHITE fiJ Judgment Rendered Appealed from February 12 2010 the Twenty Second Judicial District Court in and for the Parish of St Tammany State of Louisiana Trial Court Number Honorable William J Crain Walter P Reed Covington 333 434 Judge Presiding Counsel for Appellee State of Louisiana LA Kathryn W Landry Baton Rouge LA Raymond C Burkart Covington LA Robert Angola Latroy White III Counsel for Defendantl Appellant Robert Latroy White Defendantl Appellant pro se LA BEFORE WHIPPLE HUGHES AND WELCH JJ WHIPPLE J The defendant Robert with armed of not robbery The trial court trial a denied the defendant s sentenced was to probation parole defendant a vacated the adjudicated original imprisonment at The defendant 2 court The trial court a new The trial right 3 s found guilty or suspension of a sentence of judgment to at sentence the trial or reconsider committed legal error by failing to grant the trial legally erred by not declaring a mistrial when the discovery conduct substantially affected the defendant s The evidence a defense beyond all reasonable doubt to convict the defendant of armed robbery and the trial court erred and abused its discretion by not quashing the bill of information and by denying the defendant s post verdict judgment of acquittal was insufficient committed gross prejudicial error and abused its denying the defendant s motions to continue thereby The trial court discretion by to 5 prepare discretion adequately 6 s s denying his ability committed gross prejudicial error and abused its denying the defendant s motions for mistrial those court by motions based upon jury due process rights and his defense for trial the defendant The trial After court sentence court to prepare denying hard suspension motion 4 of hundred years one probation parole denied the defendant s motion plea charged as imprisonment habitual offender felony imposed years a appeals raising the following counseled assignments of error now State and was fifty hard labor without the benefit of defendant 1 second sentence The trial of sentence The defendant entered motion for post verdict labor without the benefit of was charged by bill of information the defendant by jury and the defendant acquittal was violation of LSA R S 14 64 a After guilty Latroy White prejudicial statements by witnesses in the presence The trial court defendant an erred and abused its excessive sentence discretion in gIvmg the and by denying the defendant s motion for reconsideration of sentence 2 The defendant raises the of assignments se pro error as set forth in his brief supplemental 1 following The trial failing committed reversible and reviewable court grant the defendant to motion s to legal error by quash defective indictment 2 The trial failing to committed reversible and reviewable court grant the defendant s error by motion for post verdict judgment of acquittal For the following adjudication and reasons affirm we the conviction habitual offender sentence STATEMENT OF FACTS On or about April 30 2007 Covington Louisiana the defendant and at security guard him observing register and a security remove Pittman waistband Wal Mart approached at in m a Wal Mart in Jason Pittman the victim began following the defendant after Pittman devices from items and place the items in his the defendant after he walked past the last cash The defendant the victim and the victim retreated after the defendant and observed him plate 2 15 p by observed was physical altercation ensued pocket and swiped and license approximately at enter number of the vehicle to vehicle a the pulled a knife from his Pittman exited the store Pittman provided the make police COUNSELED ASSIGNMENT OF ERROR NUMBER ONE In the first ruling on assignment of his motion for State made an the defendant improper a new error trial the defendant Specifically oral request for prejudicial confusing factual inferences defendant contends that in response interpret the trial evidence and court expanded the to special jury charge and resulted in the jury impermissibly s an without furnishing jury charge created unfair verdict request for instructed the statutory elemental 3 court s the defendant contends that the The defendant further argues that the copy immediate control a challenges the trial a definition jury structure The on how of to of LSA R S 14 64 by instructing the with jurisprudence and jury inference and definition of the word court s armed creating existent a non legal The defendant argues that the trial misinterpretation and application of the law created legal error During the traversal of the jury trial instructions the defendant argued that armed to should be defined robbery sections of the specific wording was not consistent with App 5th Cir above cited 1984 but the trial case as wit a The State in State given court to the the follows or objected the to ruled that the See LSA R S court use of the instruct the jury 2d 721 language language would objected agreed that the 444 So Bridges v La from the be used jury herein included the statutory definition of taking of anything of value belonging another to which is in the immediate control of another intimidation while the offender is armed with knife added the instructions proposed jury The defendant from the person of another or forth in the bill of information and jury instructions detailed robbery of force set satisfactory and requested that the trial The instructions armed as The trial 14 64A court a dangerous however in by use weapon to pertinent part following You need not find that the accused during the robbery to find him defendant armed himself to guilty facilitate his was armed of armed at all times robbery If the completion of the robbery or insure that he could get away without resistance from the victim or that he became armed in the final step in a series of events to facilitate to his escape or the completion of the crime you may consider him armed for the purpose of this statute The defendant s trial court 2d at s use subsequent motion for a of this language 726 in addressing The trial J1n State v a sufficiency court must Bridges which was cited trial by of the evidence charge the jury 444 So new 2d 721 La as App to the was to based in part court in Bridges assignment of error the law 5th Cir applicable 1984 be to on the 444 So I the case the court found that the evidence established that the defendant armed himself with a dangerous weapon by taking a pistol from a security guard during the robbery to effectuate his escape The court held that this was sufficient to establish the offense ofarmed robbery 4 LSA C CrP Any jury instruction that relieves the State of its 1 802 art Fourteenth Amendment burden of beyond La reasonable doubt is unconstitutional a 6 28 06 App 5th Cir 934 So 2d 269 In Smith the defendant contended he of Black Law s additional s v Smith 2005 951 not aid and abet appeal the suggest to did as not based upon are cited in the dictionary s and court a reasonable doubt err court s found that the trial not The have to prove appellate court in reading the jury the definition of aid accepted jurisprudence individual entries case and that applicable Smith 2005 951 the defendant and the State the notion that reject outright guidance use during procure at pp case 15 16 objected to the language in the jury instructions and the State proposed the substitution jurisprudential precepts in the formulation of jury instructions abundantly cites on Lamonica Criminal armed define the armed of the crime as a robbery See law is 934 So court not of s use serve to cannot most at issue be used for notably Bridges is cited in the Jr and P Raymond in 17 Louisiana Civil Law Treatise language from accepted jurisprudence robbery considered in relieve the State from assignment of error lacks merit 5 original The Louisiana Civil Law Treatise Cheney C Joseph 10 64 element of armed whole did This regard Jury Instructions We find that the trial jury charge in this jurisprudence authors Comments to La 280 In the instant 2003 16 Dictionary noting that definitions in that written in Black s Law publication at 279 court appellate the trial the jury that the State did further found that the trial and abet prejudiced by On jury instructions instructions did was define beyond We p 2006 2930 279 writ denied to Dictionary every element of the offenses 2d State criminal offense a 964 So 2d 357 9 28 07 court every element of proving the context of the proving any element COUNSELED ASSIGNMENT OF ERROR NUMBER TWO In the second counseled trial court erred in denying showing of a videotape withheld the jury contends that his an State unnecessarily prejudiced discretion of the trial La on appeal 1st Cir App The State automatically should absent not 6 24 94 videotape before the a prejudiced was Smith v a 2d 439 684 So 44 1983 La granted is within the sound motion for mistrial will abuse of that discretion an 2d 31 430 So and the denial of 118 96 s failure demand a writ denied a grossly 449 State v not Berry 95 1610 writ denied be p 97 0278 La will not 703 So 2d 603 1011 0 97 1 st Cir was videotape during the trial The defendant mistrial should be a court absent provided purposely remedy and should be declared only when the accused Determination of whether 7 different entirely drastic a the admission and from his view until the trial and that he ability to present a defense A mistrial is on The defendant argues that the State The defendant contends that the State trial and then used disturbed of error the defendant contends that the his motion for mistrial based inculpatory evidence prejudiced IS to assignment to reversal 493 So State 638 So 2d 1216 v 2d 1204 be reversed because of showing of prejudice with comply discovery procedures Burge 486 So 2d La 1986 an erroneous State v 855 Accordingly ruling on a La a La conviction App 12 16 94 1st Cir 648 So 2d 386 The defendant cites the following pertinent colloquy MR WHITE Your Honor I haven t this part of the video prior to today mistrial This was not made available seen and therefore Im asking for a tome THE COURT You have a response 6 App discovery violation Gaudet 93 1641 p 6 La 1220 writ denied 94 1926 866 MR ALONZO prosecutor I think I showed him all the video Yes up to show there speeded it was two minutes might have of nothingness in there We but I think this is the whole video A DISCUSSION WAS HELD OFF THE RECORD MR WHITE The this clip clip that was It showed a made available different view a to us when we viewed different angle was not It didn t show the side view of the store THE COURT Well it the was same store MR WHITE I wouldn t know Your Honor MR ALONZO Same everything MR WHITE This was not made available as a part of discovery until now THE COURT Well MR WHITE This is new evidence that s coming in THE COURT Just let me talk MR WHITE Yes Your Honor THE COURT This is Okay not time I don t know what video But if you there was a shown you I this made available to him at any was yesterday was MR ALONZO Monday we showed it on Sue s computer THE COURT So it is that was shown on a smaller computer rather than correct MR ALONZO Correct 7 on the wall THE COURT that you have had the opportunity to see it your question about it a minute clip is not the ruling The Court is I do not think that is basis for a mistrial I think the to the You store identified I don At this point defendant viewed opportunity that He to basically offered the videotape the of this clip the on him video was its discretion in the to and did not he The trial clip court was a an clip 190 The prosecutor stated saw two It have towards U S pointing out only clip that the court clips and subsequently reiterated its previous ruling and resumed not nor identified was nor court either unfounded explained or the record before so concluding sufficient we are us and in error not unable was significant was ultimately how that difference if any has concluded that the defendant on for mistrial This assignment of does the record establish any shown before the trial and what has the defendant The trial Based previous day camera and that s the clip the other was prejudiced mistrial defense counsel stated remember the difference between the not the jury clip You haven t been part of that clip a participant yet so I deny your motion clip in question The standby counsel added difference between what he to as standby different The defendant has shown not are showed the direction of the show to a they are showing here is just orienting people believe t view the was unaware that he could what to objection establish to say accordingly denying s the trial to the basis for a court the defendant s a abused motion also lacks merit COUNSELED ASSIGNMENT OF ERROR NUMBER THREE AND PRO SE ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO Bill of Information In the third counseled of information is assignment of error the defendant argues that the bill fatally defective insofar as the bill alleges that the defendant took property from the person of or within the immediate control of Jason Pittman The defendant contends that the victim if any 8 was Wal Mart and that a charge of aggravated robbery the was of assignment number attempted merely was an as constitute armed not opposed to armed In pro robbery se the defendant submits additional argument one validity of the bill of information the that Pittman error or The defendant further contends that any appropriate charge against Pittman did action taken regarding simple burglary completed or employee information is defective in that it does property in violation of LSA C CrP the defendant Specifically notes of Wal Mart and argues that the bill of not allege the name of the owner of the 471 art Louisiana Code of Criminal Procedure article 464 provides as follows The indictment shall be a plain concise and definite written statement of the essential facts constituting the offense charged It shall count citation or for reversal of mislead the defendant It is well settled that a As thus to have violated Error in the for dismissal of the ground conviction if the a his error or omission did prejudice robbery an no prejudice complain of the has resulted from 376 So 2d 1240 1242 1243 specifically Armed be customary citation of the or insufficiency bill of information after conviction if the offense or Gainey v to not defendant may not actually been identified and State alleged its omission shall or indictment indictment the official which the defendant is statute not for each state noted in State is a essential individuals has charged lack of notice See La 1979 James 305 So 2d 514 516 La 1974 v crime committed element a of the of the by violence crime be the victim of the crime is against that one Therefore the a person or more naming of theis not building or corporation which suffered a loss by sufficient to charge a robbery of it since such building or institution could not be put in fear of bodily harm and could not be the victim of the crime of armed robbery some However the bill of information herein identifies Pittman in this by an case employee of the or Thus the accused has been the bill of information prejudice building We therefore find by corporation name that suffered a e loss Wal Mart fairly informed of the charge against him The defendant has failed no the victim herein i merit in this argument 9 to show lack of notice or Sufficiency of the Evidence the Challenging number three error Pittman was of the evidence sufficiency in counseled the defendant argues that the evidence did in immediate control of anything of value was no evidence that the defendant had the commit robbery or armed used excessive force Further Pittman against in the second pro stated that never take anything assignment of anything was States court is controlled Supreme Court in Jackson 2789 61 L Ed 2d 560 Legislature in viewed in the 1979 enacting light most or that v by support to 18 cert State Virginia favorable to art the 821 denied 547 U S 1022 prosecution 126 S Ct 1569 LSA R S by 2d 416 420 State v was sufficient reasonably rejects a a case trial a the United 12 4 15 438 1st Cir when convince 907 So 05 provides that App to the a proved beyond a 164 L Ed 2d 305 Graham 2002 1492 p 5 La When was adopted by 2006 2d 1 When the trier of fact be satisfied that the overall evidence excludes every reasonable innocence s is whether the evidence Brown 2003 0897 p 22 La analyzing circumstantial evidence must anything 443 U S 307 319 99 S Ct 2781 That standard of appellate review LSA C Cr P v aggressor conviction a the standard enunciated rational trier of fact that all of the elements of the crime had been reasonable doubt an statements reviewing the sufficiency of the evidence appellate to the defendant contends that error taken from his person testimony was inconsistent with his pretrial Louisiana against The defendant further argues that Pittman in his immediate control In specific intent The defendant contends that Pittman him and he defended himself se show that not The defendant further argues that there an of assignment 14 2 hypothesis 03 of 845 So involves circumstantial evidence and the trier of fact hypothesis of innocence presented by hypothesis falls and the defendant is guilty unless there 10 the defense is another that hypothesis that raises reasonable doubt a State Moten 510 So v 2d 55 61 La 1st Cir App writ denied 514 So 2d 126 La 1987 An appellate court in assessing the juror Mitchell 99 3342 p 8 jury State is free to or constitutionally precluded there is give La 17 10 00 reject in whole conflicting testimony depends upon a 772 So 2d 78 or weight of the evidence acting As the trier of fact testimony insufficient trier of fact does State 94 0141 denied 596 La an a issue Azema v Moreover where matter is Richardson 459 So 2d 2d 723 In this case belonging to dangerous weapon Armed by armed of force robbery is to a or general sustain writ raise not identity as establish the robbery is the taking intent crime In general State v Payne intent by the very 540 So 2d 520 writ denied 546 So 2d 169 La 1989 1st Cir from items in the electronics The defendant of intimidation while armed with Pittman testified that he observed the defendant waistband not conviction is shown a doing of the acts that have been declared criminal App 1st Cir 1993 Quinn 479 So 2d 592 v the defendant does 14 64A use crimes the criminal intent necessary 523 524 La testimony another from the person of another or that is in the immediate control of another a at 38 support the verdict In accordance with LSA R S of value App La State one accepted by the trier of fact but rather argues that the evidence does necessary elements to anything 727 637 So 2d 460 La 4 29 94 appeal render the evidence 633 So App 1 st Cir 1985 on not a the resolution of which matters sufficiency v of any witness Thus the fact that the record contains evidence that conflicts with the accepted by thirteenth See State cases 1st Cir 1984 App as a credibility of the witnesses the its not 83 in part the about factual determination of the from evidence in criminal to weight Richardson 459 So 2d 31 38 La v of the accept is department of the pulled his shirt 11 store over remove before security devices placing the items his waistband and walked in his to the The defendant walked past the cash garden center patio According to Pittman hit Pittman s hat twice with the knife as have the to proceeded not about merchandise anything Pittman attempted pulled The defendant told Pittman that he right side pocket successfully inquired detain the defendant before the defendant physically and the defendant stated that he did when Pittman approached him and to register a knife from his would cut him and the defendant jabbed towards him After further examination Pittman stated that he his hands on the merchandise retrieving his knife at the time During cross in his waistband and jet cartridges additional boxes of ink jet referring objects to taken under his control at The Reporter acknowledges definition of definition is that source taking that s aptly not previous to adopted taking from the person connection with the restricted in common application to those adopted that time s recall not during was an were ten to 1933 cases 50 of 1805 the common law The common law 211 and it is from changes Regarding the Comment notes of another law definition 12 referencing Act with very few phrase from the person of another the Reporter The words has stated in the California Penal Code was six or testify 14 64 Legislature it existed that this section ink jet question Pittman confirmed that he Comment for LSA R S as as given his employment responsibilities the entire the Louisiana robbery was cellophane wrapped unknown merchandise as in his control The defendant did was who devices When asked whether the items in the time of the fifteen feet away but stated that building security Pittman stated that he did the defendant interview with Detective Vitter briefly get repeated these actions with five cartridges by to examination Pittman identified the The defendant then concealed the box with the cartridges able he tussled with the defendant as merchandise from which the defendant had removed ink was of in which the as robbery used in are not property taken is in actual with the person of the one from whom it is taken but if the property is away from the owner yet under his control for instance in another room of the house it is nevertheless in his contact possession from his In this was close deprived thereof it may well be said it is taken Citation omitted possession Pittman the case offense and and if he is store security guard in enough proximity to duty was on clearly belonging a dangerous review of the record we fact could have found in weapon in the immediate beyond a most favorable to the State reasonable doubt and of innocence hypothesis the offense completing After find that the evidence supports the Viewing the evidence in the light reasonable or The defendant Further the defendant used force and intimidation control of another armed with area another from the person of to the time of the observe the defendant s actions and confront the defendant before he could leave the took items of value at thorough a jury while verdict s any rational trier of the exclusion of every to that the defendant was of armed guilty robbery This assignment of error is without merit COUNSELED ASSIGNMENT OF ERROR NUMBER FOUR In the fourth erred in assignment denying his motion to of continue trial The defendant contends that view the photographic lineup audiotaped discovery order concluding The trial to due v s 2007 day for the first time he purporting audiotaped to was show the statement day of the the allowed to robbery his despite a previous Champion was unable to prepare adequately for the trial and The was process court continuance and its State video November 12 discovery order had been complied with by the State defendant contends that he right a that on court The defendant contends that the State misled the defense into that the denied his on and the victim statement the defendant argues that the trial error has ruling great discretion in deciding whether will not 412 So 2d 1048 be overturned absent 1050 1051 13 La 1982 an to grant a abuse of discretion LSA C Cr P art 712 Generally conviction will a continuance unless there is be reversed due not showing of specific prejudice a result of the denial of the continuance 11 196 1983 683 So cert In 2d 218 229 State had defendant open file granted s motion to lulled into presented proof of any prejudice suffered as motion to continue continue the trial a Thus this assignment court misapprehension Further La La 1984 noted that the of the court s not strength the defendant has result of the trial a as a 23 Further the record does case a 1147 Knighton 436 So 2d 1141 v on the defendant 104 S Ct 1330 79 L Ed 2d 725 s was to Strickland 94 0025 p v any actions of the State by case State discovery in this establish that the defendant the State State denied 465 U S 1051 denying the improper ruling to an of not denial of the of error lacks merit COUNSELED ASSIGNMENT OF ERROR NUMBER FIVE In the fifth counseled trial court erred in statements assignment familiar with the defendant motion for mistrial presence of the detective acted police a was s error the defendant contends that the address based on improperly when s witness criminal court abused its discretion in denying his motion for As In the state or The defendant contends that he provided in LSA the following cases alleging was upon the 1 the defendant had the trial mistrial request of the defendant or the shall or immaterial and of such might create prejudice against the defendant of the jury When the remark or comment is made 14 or the a state by the judge the district attorney or a court official and the remark is scope of Article 770 or was second a prejudiced and that it in the mind that art 771 of the jury when the remark is irrelevant nature a notes promptly admonish the jury to disregard a remark made during the trial or in argument within the hearing court comment C Cr P he testified that he The defendant further the State the defendant Specifically jury prior activity prejudicial his motion for mistrial based upon denying by witnesses in the argues that of not within the 2 When the remark comment or is made by witness a or person other than the judge district attorney or a court official regardless of whether the remark or comment is within the scope of Article 770 Louisiana Code of Criminal Procedure article 775 ordered when prejudicial for the defendant 771 is at defendant As conduct in or outside the obtain a remarks of the witness to obtain fair trial See State a 739 So 2d 901 previously noted a drastic a when the defendant suffers such substantial any reasonable should be a expectation of motion for mistrial will State was fair trial Berry 95 1610 v Regarding not the defendant area defendant s just mother from as a was s testify as to during the whether the deprived mistrial a and the denial of without abuse of that appeal on of about any crime committed from over there within working a simply by the stated that he I worked was a allowed over to there continue complex of condominiums and that he there He added that he knew the over teacher cross store court address the detective being The other motion for mistrial defendant granted only Determination of whether After the denial of the defendant s motion the detective and added that the address 753 So 2d 231 denials of the defendant s requests for court s very familiar with the address knew the 128 00 1st Cir App that he has been prejudice for the impossible at p 7 684 So 2d at 449 First Detective Vitter did defendant where the that should be remedy be disturbed not We agree with the trial mistrial of Article is within the sound discretion of the trial granted discretion a provisions Miles 98 2396 p 4 La v 904 writ denied 99 2249 La mistrial is impossible of the prosecutor make it or mistrial shall be granted only and should be court a makes it courtroom A mistrial under the fair trial the discretion of the trial prejudicial 6 25 99 to provides that was based on statements examination of Jason Pittman made a record of theft 15 at the elicited by the The defendant inquired Pittman in pertinent store At that caught defendant to the record prejudice Accordingly defendant s moved for the cited response Considering substantial the State point subsequently disregard trial I did go into Yes part responded the trial requests for system and found where you had been objected to the line of mistrial The trial court and the questioning admonished the jury by the witness as a nor was a our he whole we deprived court did find that the defendant did of any reasonable not not suffer a fair denying the of expectation abuse its discretion in mistrial This assignment of error is also without merit a COUNSELED ASSIGNMENT OF ERROR NUMBER SIX In the final erred in assignment imposing offender whose goal sentence was the defendant contends that the trial error excessive an reconsideration of the of denying his The defendant contends that he was to wreak and sentence havoc on in motion not a He adds that he society court for violent was an unfortunate substance abuser with learning disabilities Article I Section 20 of the Louisiana Constitution of excessive may violate to subject punishment Although a defendant s a appellate review right against excessive punishment and is Generally the a sentence to needless pain and suffering disproportionate harm to of severity if when the crime and society it is so is considered excessive if it is of the crime grossly disproportionate imposition as to and the sentence imposed should absence of manifest abuse of discretion App 1st Cir 798 So 10 3 00 797 So 2d 75 shock not State 83 2d 962 16 is nothing more than the A sentence is considered punishment disproportionate or are be v considered in one s sense judge is given wide discretion in the imposition of limits imposition the be within statutory limits it sentence may constitutional prohibits set aside as light of justice sentences grossly of the A trial within statutory excessive in the Hurst 99 2868 pp writ denied 2000 3053 La 10 11 La 10 5 01 Whoever commits the crime of armed labor for not benefit of less than parole probation person who after having or suspension punished follows as than his natural life then the less than for prescribed term adjudication as hundred years one a at a of than ninety imprisoned LSA R S state of longest felony imprisonment term and not LSA R S first conviction felony a for any shall be for more hard a 1 1A was first term less determinate or longest Upon his a sentenced probation parole felony a than twice the 15 529 Any thereafter is such that upon offender the defendant hard labor without benefit of 14 64B upon conviction of said state at nine years without punishable by imprisonment sentence to felony shall be sentence i f the second half the second more been convicted within this conviction the offender would be term not not subsequent felony within this commits any shall be and for ten years robbery to one suspension of sentence In sentencing defendant the investigation report defendant had knife and court the using a Prior PSI defendant s a pre sentence original sentencing the State noted that the that knife to facilitate his leaving stated that it had reviewed LSA C Cr P original not noted it had received pattern of committing robberies and thefts while armed with sentence was history and the violent grossly disproportionate unconstitutionallyexcessive CONVICTION the art scene 2 to This of the objection immediately resentenced nature the events 894 1 and the PSI and The defendant withdrew his offender bill of information and is to court of the offense we to a The trial imposed the habitual Considering the find that the sentence severity of the offense and thus is not assignment of error lacks merit HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 2We note that while the defendant cites a learning disability as a mitigating factor the defendant represented himself during the trial and displayed significant intelligence and ability 17
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