State Of Louisiana VS James Samuels
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0821 STATE OF LOUISIANA VERSUS JAMES SAMUELS Judgment rendered OCT 2 9 2010 On Appeal from the 17 Judicial District Court Parish of Lafourche State of Louisiana Criminal Number 464780 Division B The Honorable Jerome J Barbera III Judge Presiding Camille A Morvant II District Attorney Joseph S Soignet Counsel for Appellee State of Louisiana Kristine M Russell Assistant District Attorneys Thibodaux Louisiana Lieu T Vo Clark Counsel for Appellant Slidell Louisiana James Samuels BEFORE KUHN PETTIGREW AND KLINE JJ Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court KLINE J The defendant James Samuels was charged by bill of information with three counts of armed robbery counts one two and four and one count of simple robbery count five violations of La R 14 and La R 14 S 64 S 65 The defendant entered a plea of not guilty as to each count After a trial by jury the defendant was found guilty as charged on each count The defendant was sentenced to thirtyfive years imprisonment at hard labor without the benefit of probation parole or suspension of sentence on counts one two and four to be served concurrently and to seven years imprisonment at hard labor on count five to be served consecutively to the sentences imposed on counts one two and four The defendant now appeals assigning error as to the sufficiency of the evidence in support of the convictions to the constitutionality of the non unanimous verdicts and to the constitutionality of the sentences For the following reasons we affirm the convictions and sentences STATEMENT OF FACTS On or about December 10 2007 Sandra Franke was working as a gaming hostess at Raceland Truck Plaza and Casino As a hostess Franke carried money on her person in a pouch to service patrons by cashing their tickets as they remained at the casino machines Franke approached a black male patron who signaled for her to cash out his gaming ticket for three dollars and fifty cents Franke gave the patron three dollars and informed him that she had to retrieve coins from the bar Franke was holding her cash pouch in her hand at the time As she turned to walk towards the bar she heard a noise and turned back toward the The bill of information originally charged the defendant with five counts of armed robbery one count of simple robbery and one count of aggravated flight from an officer After several counts were nol prossed and the original count six teas renumbered to count five the State proceeded to trial on the counts as provided above I minutc state that the trial court imposed the sentence on count five without the benefit of probation parole or suspension of sentence However the sentencing transcript reveals that the trial court did not impose these restrictions When there is a discrepancy between the mimics and the transcript the transcript prevails Stale v Lunch 441 So 732 734 La 1983 2d 2 patron He pushed her to the floor grabbed the cash that fell from her pouch to the floor and ran out of the casino Franke did not get a good look at the individual s face and could not identify him Franke sustained injuries to the back of her head as a result of the push and fall On or about October 14 2008 at approximately 7 p a masked 47 m gunman entered Shop N Gas in Raceland Louisiana pointed a gun at Catherine Bordlee a store cashier and ordered her to give him money Bordlee described the gunman as a black male wearing a black knit mask revealing only his eyes Bordlee opened the cash register and the gunman removed the cash from the register and inquired as to the location of the store safe Bordlee informed him s that the safe was in the back of the store and gave him a bag of money The gunman removed the money from the bag and exited the store On or about October 21 2008 between 7 and 8 p a masked 00 00 m gunman entered the Raceland Exxon Station in Lafourche Parish The gunman pointed his weapon at Brittany Cordes a station employee at the time Cordes described the gunman as a black male wearing a ski mask and a black hooded sweatshirt with a red South Pole emblem on the front of it The gunman held the gun toward her face and instructed her to open the cash register and place the drawer on the counter The gunman held the gun over the counter and further instructed Cordes to get down as he removed over five hundred dollars from the drawer Cordes was unable to positively identify or further describe the face of the masked gunman On or about November 14 2008 a black male entered Cheap Smokes in Raceland Louisiana Lafourche Parish and pointed a gun toward Kimberly Strother and Patricia Forbes store cashiers at the time The gunman was wearing a tan maybe goldish color hoodie and jogging pants The gunman used one hand to hold the hood over his face leaving his eyes in view while using the other 3 to brandish the weapon He ordered Strother to get on the floor and Forbes to give him money and open the safe The gunman exited with around four or five thousand dollars ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant argues that the evidence is insufficient to support the convictions The defendant contends that the convictions were based solely on his confession to the police claiming that there were no witnesses or physical evidence directly linking him to the robberies The defendant contends that the statement was obtained during a threehour questioning and detention period The defendant further contends that the detectives used leading questions and suggested answers on several instances when the defendant gave incorrect information The defendant also specifically notes that his confession included several facts that were inconsistent with the actual facts of the case For example the defendant notes that his statement indicates that he used a pipe with his sleeve pulled down over it as a weapon in the Cheap Smokes robbery and notes that the victims and the video for that robbery however indicate that a gun was used Regarding the same robbery the defendant notes that his statement indicates that he took between twentyfive and twentysix hundred dollars while the victims stated approximately five thousand dollars was stolen The defendant concludes that his confession is unreliable The standard of review for sufficiency of the evidence to support a conviction is whether viewing the evidence in the light most favorable to the prosecution a rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant identity as the perpetrator of s that crime beyond a reasonable doubt See La Code Crim P art 821 Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 State v S Ct 2d Ed Johnson 461 So 673 674 La App 1st Cir 1984 2d 19 When analyzing circumstantial evidence La R 15 provides that the trier of fact must be S 438 satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 20021492 p 5 La App 1st Cir 2 845 03 14 2d So 416 420 When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1st Cir 2d writ denied 514 So 126 La 1987 2d When the key issue is the defendant identity as the perpetrator rather than s whether the crime was committed the State is required to negate any reasonable probability of misidentification State v Holts 525 So 1241 1244 La App 2d 1st Cir 1988 Positive identification by only one witness may be sufficient to support the defendant conviction State v Andrews 940842 p 7 La App 1 st s Cir 5 655 So 448 453 95 2d Louisiana Revised Statutes 14 provides Simple robbery is the taking 65A of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation but not armed with a dangerous weapon Louisiana Revised Statutes 14 provides Armed 64A robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation while armed with a dangerous weapon A dangerous weapon includes any gas liquid or other substance or instrumentality which in the manner used is calculated or likely to produce death or great bodily harm La S 2 R 14 A gun used in connection with and at the scene of a robbery is as a 3 matter of law a dangerous weapon State v Refuge 300 So 489 491 92 La 2d 1974 61 Detective Nicholas Pepper of the Lafourche Parish Sheriff Office was in s the area travelling on U Highway 90 at the time of the December 10 2007 S robbery at Raceland Truck Plaza and Casino When the officers arrived at the scene the perpetrator was gone They spoke to the injured victim Franke and viewed surveillance footage that was consistent with Franke rendition of the facts s and showed the perpetrator as he lost his shoes while fleeing the scene The officers recovered and placed the black size eight unlaced Nike Air tennis shoes into evidence Detective Pepper testified that the shoe size was consistent with his observation of the size of the defendant feet noting that the defendant feet were s s small considering his stature Regarding the October 14 2008 armed robbery at Shop N Gas in Raceland Louisiana Bordlee testified that the gunman voice was familiar When asked s during cross examination if she could unequivocally identify the defendant as the perpetrator Bordlee testified as follows Positively I can say it was him when I saw him in that lineup in the thing because when he was talking my body started trembling and when he walked through that door over there when he came out that thing my body was shaking like a leaf Bordlee confirmed that she did not positively identify the perpetrator during a lineup adding I thought it might be him but I wasn positive Detective Pepper t testified that surveillance footage for the Raceland Ag Center located just north of the Shop N Gas on La Highway 308 allowed the officers to observe a dark colored fourdoor sedan in the area of the robbery at the time it occurred The robbery at Raceland Exxon also known as Ray Exxon located on the s same corner as the Shop N Gas took place seven days later October 21 on the same day of the week and at approximately the same time of day as the October 14 Shop N Gas robbery The officers again obtained surveillance footage for the area at the time of the robbery and noted the presence of a vehicle believed to be the 2 same vehicle observed in the area during the Shop N Gas robbery The officers used both videos to fully identify the vehicle as a blue 2001 to 2003 Chevy Impala The officers began focusing on vehicles matching this description and collecting their license plate numbers as they investigated the robberies The officers also noted that both robberies occurred on Tuesdays and planned to conduct surveillance at several convenience stores in the area on the subsequent Tuesday On October 27 2008 while patrolling the area the day before the planned convenience store surveillance operation the officers observed a dark blue Chevy Impala with three occupants travelling on Williams Street The occupants looked at the police unit and avoided further eye contact Detective Pepper obtained the license plate for the vehicle and it was registered in the name of Heather Barabin at 592 St Louis Street Barabin was the defendant girlfriend at the time The s officers drove to the residence and the defendant was sitting outside with two other males and the blue Impala was in the driveway The defendant was wearing a black South Pole sweatshirt The officers parked nearby and waited for backup units to arrive before approaching the residence As they hovered near the residence the officers observed the defendant remove the sweatshirt although it was 55 degrees outside The officers asked the defendant to go to the Sheriff s office for questioning and the defendant complied The defendant was given and waived his rights but did not make any incriminating statements at that time and was free to go On November 14 2008 the officers received a call regarding an armed robbery in progress at Cheap Smokes Captain Dean Savoie of the Lafourche Parish Sheriff Office was in an unmarked unit on Louisiana Highway 1 about s 75 feet from Cheap Smokes at the time of the call and had just observed an individual wearing a hood over his head run out of the store enter a tan colored vehicle with a temporary tag and head northbound on Highway 1 towards 7 Raceland Captain Savoie provided this information to the units in the Raceland area and a patrol unit spotted the suspect and pursued it as Captain Savoie got stuck in traffic in his unmarked unit Detective Pepper and Detective Guillermo Munive were driving near Cheap Smokes at the time and pulled into the parking lot just after the perpetrator left Deputy Ronnie Verdin Jr of the Lafourche Parish Sheriff Office Patrol s Division was dispatched to the robbery and received information from Captain Savoie Deputy Verdin pursued the suspect vehicle at high speed up to nearly 100 miles per hour observing the suspect lose control of the vehicle at times The vehicle drove into a Raceland community and hit a trailer on St Phillip Street The driver exited and abandoned the vehicle on foot Deputy Verdin attempted to pursue the suspect on foot but lost him The abandoned vehicle was a Pontiac Bonneville registered in the name of Kent Bell at 587 St Louis Street a couple of blocks away from the location of the wreck and abandonment Germaine Samuels the defendant mother arrived at the scene of the wreck and informed the police s that the registered owner of the vehicle Kent Bell was her fiancé She further informed the police that the vehicle was stolen and that the defendant must have taken it without permission She did not see the defendant take the car and had not seen him that day The defendant had previously used the vehicle Although Samuels testified that she did not provide the police with a description of the s defendant attire on that day according to the collective testimony of Deputy Keniyelle Frank and Detective Pepper she stated that he was wearing a tan sweatshirt consistent with the description of the perpetrator attire s The defendant became the prime suspect for all four robberies and the police apprehended him on November 21 2008 After being advised of and waiving his rights the defendant provided a recorded statement The defendant confessed to committing the robberies in question providing specific details As 0 to the December 10 2007 robbery at Raceland Truck Plaza and Casino the defendant stated that he went in and sat down near a machine and a woman passed with the moneybag and I just jacked the moneybag and ran When asked if the moneybag was tied around the victim waist the defendant stated She like s had it in her hand getting ready to tie it on her waist The defendant stated that he lost his shoe while running away and that he wore an eight and onehalf shoe size When asked what kind of shoes he lost the defendant described them as black Nikes Regarding the October 14 2008 robbery of Shop N Gas the defendant stated that he used his girlfriend vehicle a blue Impala and confirmed that he s parked near the Raceland Ag Center The defendant stated that he was wearing a black hoodie and a mask over his face The defendant said he used a pipe to commit the robbery stating that he pointed it and demanded money The defendant stated that one store attendant a female was present at the time explaining that she took the cash drawer out of the register sat it on the counter removed about four or five hundred dollars and gave it to the defendant The defendant stated that he used the blue Impala to commit the robbery on October 21 2008 at Ray Exxon The defendant stated that he wore a black s jacket When asked if it was a black hoodie with writing on it the defendant stated Yeah a black hoodie and initially stated that the writing was Jabot but when prompted as to whether it was Jabot or South Pole stated Yeah South Pole South Pole The defendant stated that he obtained about four hundred dollars from that particular robbery Regarding the November 14 2008 robbery at Cheap Smokes the defendant stated that he used his mother vehicle a Pontiac Bonneville and wore a beige s hooded sweater The defendant stated I went in the store with my hood on pulled tight and demanded the money adding that the female attendant gave him twenty M five to twentysix hundred dollars The defendant stated that a police car approached him as he travelled down the highway after he left Cheap Smokes He stated that he started driving fast and turned down St Patrick Street and ran into a trailer after losing control of the vehicle The defendant stated that he jumped out of the vehicle and ran While there were some self serving inconsistencies in the defendant s confession including the claim that he used a pipe instead of a gun and collected lesser amounts of money than the victims indicated the defendant confession s included detailed information regarding the robberies in question that was consistent with the information provided by the witnesses The facts that were known by the defendant supported his confession as the perpetrator of the offenses For example the defendant specifically indicated that Franke was holding her money pouch at the time that he jacked it and ran We conclude that the defendant confession was highly reliable based on s the level of detail without any significant prompting or inconsistencies Further there was additional testimony regarding the vehicles used the attire worn and the shoes left at the scene of the Raceland Truck Plaza and Casino robbery that linked the defendant to the robberies Specifically the defendant not only admitted to wearing a South Pole sweatshirt but was also observed by the police wearing such a shirt on a later date With the exception of the Raceland Truck Plaza and Casino simple robbery offense the victims unequivocally testified that the defendant used a gun in the commission of the remaining armed robberies Any rational trier of fact viewing the evidence in the light most favorable to the State could have found proof beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence of the essential elements of the offenses and the defendant identity as the perpetrator of those offenses An s appellate court errs by substituting its appreciation of the evidence and credibility 10 of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 20072306 pp 1 2 La 1 1 So 09 21 3d 417 418 per curiam Thus assignment of error number one lacks merit ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant notes that pursuant to La Code Crim P art 782 he was convicted by a jury concurrence of eleven of twelve on each count The defendant argues that Article 782 violates the United States Constitution Sixth Amendment right to a jury trial when considered in combination with the Fourteenth Amendment right to due process of law The defendant concludes that the non unanimous verdicts are particularly problematic in this case considering the nature of the evidence of guilt and should be declared invalid Louisiana Constitution article I section 17A and La Code Crim P art 782A provide that in cases where punishment is necessarily at hard labor the case shall be tried by a jury composed of twelve jurors ten of whom must concur to render a verdict Under both state and federal jurisprudence a criminal conviction by a less than unanimous jury does not violate a defendant right to trial by jury s specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment See Apodaca v Oregon 406 U 404 92 S 1628 S Ct 32 L 184 1972 State v Belgard 410 So 720 726 La 1982 State v 2d Ed 2d Shanks 97 1885 pp 15 16 La App 1st Cir 6 715 So 157 16465 98 29 2d The defendant in part relies on Andres v United States 333 U 740 748 S 68 S 880 884 92 L 1055 1948 wherein the Supreme Court recognized Ct Ed the Sixth Amendment guarantees a right to a unanimous jury verdict in federal criminal trials However in its subsequent pronouncement on the unanimous jury question in the companion cases of Johnson v Louisiana 406 U 356 35960 S 92 S 1620 1623 24 32 L 152 1972 and Apodaca v Oregon 406 Ct 2d Ed 11 S U at 406 92 S at 1630 the Court specifically held that while the Sixth Ct Amendment requires a unanimous verdict in a federal criminal trial the Sixth Amendment applicable to the states through the Fourteenth Amendment under Duncan v Louisiana 391 U 145 88 S 1444 20 L 491 1968 does S Ct 2d Ed not impose a similar requirement on state criminal proceedings The other Supreme Court decisions relied upon by the defendant Ring v Arizona 536 U S 584 122 S 2428 153 L 556 2002 Apprendi v New Jersey 530 U Ct 2d Ed S 466 120 S 2348 147 L 435 2000 and Jones v United States 526 Ct 2d Ed S U 227 119 S 1215 143 L 311 1999 do not address the issue of the Ct 2d Ed constitutionality of a non unanimous jury verdict Rather they address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the trial judge sitting alone These decisions stand for the proposition that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt See Apprendi v New Jersey 530 U at 490 120 S at S Ct 236263 Nothing in these decisions suggests that the jury verdict must be s unanimous for a defendant sentence to be increased Moreover this court and s our supreme court have previously rejected the argument raised in this assignment of error See State v Bertrand 20082215 pp 68 La 3 6 So 738 09 17 3d 74243 and State v Smith 20060820 p 24 La App 1st Cir 12 952 06 28 2d So 1 16 writ denied 2007 0211 La 9 964 So 352 07 28 2d Louisiana Constitution article I section 17A and La Code Crim P art 782A are not unconstitutional and hence not in violation of the defendant Sixth s Amendment right to trial by jury or due process rights This assignment of error is without merit ASSIGNMENT OF ERROR NUMBER THREE 12 In the third assignment of error the defendant contends that the trial court imposed excessive sentences However a review of the record indicates that defense counsel did not file or make a motion to reconsider sentence Under La Code Crim P arts 881 and 881 the failure to make or file a motion to 1E 1 2A reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal including a claim of excessiveness The defendant therefore is procedurally barred from having this assignment of error reviewed State v Duncan 941563 p 2 La App 1st Cir 12 667 So 1141 1143 en 95 15 2d bane per curiam See also State v Felder 20002887 p 10 La App 1st Cir 01 28 9 809 So 360 369 writ denied 2001 3027 La 10 827 So 2d 02 25 2d 1173 DECREE For the foregoing reasons we affirm the convictions and sentences CONVICTIONS AND SENTENCES AFFIRMED 13
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