STATE OF LOUISIANA VS PARRISH NEWMAN

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 1037 STATE OF LOUISIANA VERSUS PARRISH NEWMAN qfY Judgment Rendered On Appeal from the 19th December 28 2006 Judicial District Court In and For the Parish of East Baton Rouge Trial Court No 05 04 0277 Honorable Richard Anderson Doug Counsel for Appellee Moreau District Judge Presiding State of Louisiana AttOlney Kory J Tauzin Tracey Barbera Assistant District Baton Rouge Attorneys LA Katherine M Franks Counsel for Defendant Slidell LA PalTish Newman BEFORE Appellant PETTIGREW DOWNING AND HUGHES JJ HUGHES J The defendant PalTish Newman with one count attempted armed robbery of and 14 64 three counts of armed three counts count of 14 1 64 to trial charges of first in violation of LSA R S attempted first degree robbery in violation of LSA and one then renumbered were count two five count first 14 14 27 and The follows armed count R S one attempted armed robbery charge as alTIled one robbery of count three robbery of Helen Taylor count simple robbelY of Margaret Luckett count 1 64 RS robbery of Melinda four armed count degree robbery of Cassie Alexander Kimberly Washington and 14 64 Prior degree robbery of Gabriel Wolfe Smart 14 27 14 65 simple robbery in violation ofLSA count the State dismissed the Robeli Beaulieu first in violation of LSA R S in violation of LSA R S robbery degree robbery charged by bill of infonnation was count seven first six degree robbelY of eight attempted first degree robbelY of Morteza Parandian Following jury trial on guilty as charged charged on count 4 one as a count and five guilty as guilty count two was as found charged not on guilty count three charged on six count guilty as charged on count guilty of the responsive offense of attempted simple robbery 14 27 and imprisonment at suspension of sentence convictions counts two robbelY convictions each of the 14 65 count on He eight hard labor without the benefit of probation parole on count guilty guilty of the responsive offense of simple robbery of LSA R S of the defendant or for ninety nine and four fOliy suspension of counts simple robbery years three and convictions 2 on was a on seven violation sentenced probation parole each of the armed to or robbery years at hard labor without benefit sentence seven on each of the first seven counts degree years at hard labor five and six on and three and one at hard half years The trial eight count labor on the attempted simple robbelY conviction ordered that court all of the sentences lun conculTently the State filed Thereafter have the defendant to seeking under LSA R S 15 529 1 defendant a be defendant or to life multiple offender bill of information adjudicated Following as a habitual hearing the trial a felony offender court found the felony habitual offender vacated the fomih for the armed imposed parole to a robbery and resentenced the hard labor without benefit of at imprisonment 1 of Melinda Smart sentence probation suspension of sentence The defendant now appeals urging three assignments of elTor as follows 1 The trial judge elTed in allowing the S evidence of the defendant s silent 2 following his The evidence defendant was tate to invocation of his right introduce to remain alTest insufficient was the person who establish to attempted to that rob the Morteza Parandian 3 The defendant was convicted by a non unanimous verdict in violation of the United States Constitution FACTS On several dates 2004 an beginning October 26 2003 and ending March 16 individual identified as the defendant committed robberies business establishments in the Baton Rouge area 2 1 over a note demanding the money the defendant fled The habitual offender bill ofinformation lists the armed robbery of Melinda Smart when tIus 2 Once the clerk attendant turned particular robbery is actually trial Because the defendant of attempted simple only challenges eight During each robbery the perpetrator approached the clerkattendant and presented money at as Count 5 count four the sufficiency ofthe evidence to robbery of Morteza Parandian the facts not be discussed in detail 3 surrounding support the conviction the other robberies will During each of the offenses led the clerk attendant to the defendant either brandished believe he victims described the perpetrator They all identified the defendant as as armed with was a a handgun a Each of the weapon black male with or eye photographic the perpetrator from disfigured line a ups When the defendant entered the Chevron station or about Parandian the Mr 16 March 2004 and handed the robbelY attempt was robbery unsuccessful Parandian advised the defendant he could defendant then verbally advised demanded money and told him to said the It Okay reported Mr Because to the a note was a news taken from the Several report of captured on The English an store see a gun the incident the incident days later when individual the money the store the defendant leaving immediately reported Mr Parandian described to him was read give the defendant robbing he realized that the facts of that offense robbelY attempt the note Upon receiving not on Morteza to note Mr Parandian did not okay Parandian nothing Before police that day manager observed with of here cool Im s encounter manager out College Drive Mr Parandian of his intent to rob him and Mr Parandian refused to get on were during to his was not Mr Parandian s service station a identical The manager contacted the to those police The videotape POST ARREST SILENCE In his first comi elTed in allowing the State invocation of his In 91 Doyle v 1976 assignment of right to Ohio 426 U S purposes of the defendant contends the district introduce evidence of the defendant to remain silent the United States impeachment elTor 610 following his s 4 atTest 619 96 S Ct 2240 2245 49 L Ed 2d Supreme petitioner s Court silence at held that the time of the alTest use for and after receiving the Miranda3 watTIings violates the Due Process Clause of the Fomieenth Amendment See also Portuondo Agard 529 120 S Ct 1119 1128 146 L 2d Ed mention of the defendant s post As p 47 alTest v 2000 However silence that is U S 61 74 75 it is not every prohibited by Doyle explained by the Louisiana Supreme Court in State v George 95 0110 9 La 16 10 impeachment and after fact of 95 661 So 2d 975 980 purposes of receiving an accused Miranda s silence or accused to undermine mandate a mistrial conducted the silence for or a The prosecutor may right solely at trial to an ascribe a to See v State v Arvie v to guilty meaning to 505 So 2d 44 46 post Miranda silence does Smith Stelly 93 1090 So 2d 725 729 writ denied 94 1211 use the remain silent after as a whole proof of guilt is strong and the State made impeachment not his exculpatory version related by the State brief reference right reversal where the trial See also State 1976 La silence at the time of atTest s warnings by inference for the first time Notwithstanding 1987 the defendant exercise of his constitutional he has been advised of this for Doyle condemns only the use La La 9 23 94 of the no use App 1 Cir not fairly was 336 So 2d 867 La 868 70 4 8 94 635 642 So 2d 1309 Our review of the record reveals that Detectives Tillman Cox and Kenneth Bowman of the East Baton regarding the investigation Rouge Parish Sheriff s Office testified of the instant offenses During Detective testimony counsel for the defense without articulating moved the to suppress investigation a statement made to the officers any Cox specific basis by the defendant during Counsel stated testimony begins right there I anticipate what the testimony will be and although I do not consider the statements made by the defendant to necessarily be Your honor 3 Miranda v Arizona before the 384 U S 436 467 73 86 S Ct 5 1602 s 1624 27 16 L 2d Ed 694 1966 then I think inculpatory out of an abundance of caution I would go ahead and make an oral motion to suppress and let the cOUli rule on that after the testimony and examination of the officer on the stand Thereafter hearing a the motion on to suppress held outside the was presence of the jUlY the During questioning regarding not to going I m not me the trial On sit here and admit to admit court have to you response or statement to Im of these robberies have done them not that I have done it At the conclusion of the this ruled the or in the defendant stated to you that I ve done any to to testified that question you that I have done them going beneficial for hearing the robberies in sit here and admit telling but Im not Detective Cox hearing It s not suppression admissible appeal the defendant contends the trial court elTed in allowing the State to introduce evidence of his exercise of his post argues the statement he made to the officers direct invocation of his right to remain silent after his alTest and should Upon reviewing the record before did object Cox s to the examination objection we have been allowed not find that while the defendant of the contested statement hearing on potentially inculpatory ovenuled impennissib1e Miranda at the us He during the motion to suppress Detective the general appears to have been made to the introduction of the statement based upon its court admissibility was a silence alTest does not appear references wanlings to nature to have had objection which the trial anything the defendant s post The statement was not impeachment Any elTorin allowing the This This 6 inculpatory statement assignment of elTor lacks merit alTest was to do with any silence and was harmless following not used for SUFFICIENCY OF THE EVIDENCE his In evidence presented robbelY conviction the evidence his identity at trial was in count presented at insufficient eight 4 defendant the elTor to Specifically the defendant tlial failed beyond to prove because the evidence to attempted on rob this patiicular to negate the insufficient was argues that reasonable doubt a The defendant argues his conviction cannot stand contends the suppOli the attempted simple the individual who entered the Chevron and as MOlieza Parandian offense assignment of second probability of a misidentification The standard for after whether prosecution viewing appellate review the evidence in the a is an v for reasonable doubt 94 0516 key issue p in any reasonable 4 State v When provides the fact finder 4 La a case rather than whether the crime proof La 1988 incorporated overall evidence excludes evelY reasonable Where the art in LSA C Cr P art objective standard for testing the overall evidence both direct evidence LSA R S 15 438 Hendon 443 U S 307 See also LSA C Cr P Mussall 523 So 2d 1305 1308 09 and circumstantial v to the favorable Virginia v 1979 The Jackson standard of review 82l B most light reasonable doubt Jackson 319 99 S Ct 2781 2789 61 L Ed 2d 560 State sufficiency of evidence is rational trier of fact could have found the essential elements a of the clime beyond 821 B of the State 7 4 95 654 So 2d 447 449 Milllen 2002 1006 pp challenge the identity as committed the State is probability of misidentification The defendant does not be satisfied that the of innocence is the defendant s was must hypothesis 1 Cir App analyzing circumstantial sufficiency convictions 7 2 3 the perpetrator required to negate in order to meet its burden of La App 1 Cir of the evidence in support 14 2 03 845 of the other six 2d So 506 509 be sufficient to 1013 p 3 La suppOli as case committed was the identification him a defendant s conviction 1 Cir 12 22 00 App In the instant attempt positive identification by only However s Mr Mr Parandian photographic a characteristic Mr Parandian could recall video of the offense not was was him attempted Looks rob him to some problem with not make Considering quality the identification the to make never only physical a 3 eye the positive facial identification of him in open a The defendant his eye comi at asked if the individual decide what weight was Looks like corner perpetrator described Unlike the other not testify foregoing or as a to the black male robbelY victims court The present any alibi evidence it is clear that the jmy jury was was also identification if any would be given privy Thus to it to Mr was at made identify the defendant in Since defendant has Mr trial aware any of pretrial Parandian sIess up to the the identification jmy The to guilty only alleged the State failed to prove his identity as the perpetrator of the sufficiency ofthe evidence with respect to the statutory elements degree robbelY anellor attempted simple robbery need not address the of attempted first Mr Parandian comiroom pretrial identification of the defendant procedures unequivocal in we police disfigured Looks like this guy in the the fact that Mr Parandian did not crime was a present in the was I m too old The defendant did 5 trial identification of the Mr Parandian further testified that he described the Parandian did than s 2 lineup only challenges s 1 during the trial when police upon making the report with 2000 equivocal The record reflects that stated at of sufficient identification and 4 Mr Parandian who Rather he The defendant argues Mr Parandian Parandian Coates v dispute that the robbelY not the gunman should be discredited because showed trial State 774 So 2d 1223 1225 the defendant does against witness may one 8 verdict indicates that the jUlY after rejected the defendant s Parandian s less than theory of mistaken identity Therefore are disfigured convinced that light most favorable to probability of misidentification was sufficient and that defendant to photo the State rational trier of fact could have concluded a reasonable doubt that the evidence assignment apparently which is apparent in the defendant s eye Mr conjunction with his description of the the evidence in the viewing Despite in court identification the jUlY unequivocal considered the identification in defendant s considering the entirety of the evidence we beyond a negate any reasonable was the perpetrator This of elTor lacks merit NON UNANIMOUS JURY VERDICT In his third erred in assignment accepting non which art I elTor unanimous defendant argues that in and LSA Const of the defendant jUlY verdicts as the trial asserts legal Specifically light of recent jurisprudence LSA C Cr P S 17 providing for jUlY verdicts of 10 punishment is necessarily confinement at to 2 in armed robbelY charge to 1 jury verdicts which found counts 2 attempted first degree robbelY responsive offense of and 4 attempted and the 10 him simple 782 cases guilty in on on the the the guilty of the count robbery Thus verdict to 2 which found him count art the hard labor violate the Sixth and Fourteenth Amendments of the United States Constitution defendant argues that the 11 judge 8 are unconstitutional The LSA R S o als punishment for armed robbery is confinement l4 64 B confinement at The that in cases hard labor See punishment for attempted first degree robbery is hard labor See LSA R S Louisiana Constitution article I provide at where S 17 A punishment 9 is 14 27 D and 3 and 14 64 1 B LSA C Cr P necessarily at art 782 A hard labor the case shall be tried to render to trial states Under both verdict a conviction by a jUlY composed of twelve jurors by a less than unanimous jUlY does by the Fourteenth Amendment 92 S Ct 1628 720 726 6 29 98 La 1982 State 715 So 2d 157 on 122 S Ct 2428 120 S Ct 2348 States 526 U S 227 Supreme constitutionality crime of the jury New defendant s 15 16 or Washington 542 v Arizona Apprendi 147 L Ed 2d 435 2000 to Jersey a a crime jury verdict rather they address the beyond the not in deternlining at 490 I unconstitutional and Amendment to right 17 A S hence trial a not at 2362 2363 must violative 10 within the maximum the penalty province of art the be must Apprendi Nothing be unanimous LSA C CrP by jUlY of increased reasonable doubt See verdict and an issue prior conviction that increases the a 120 S Ct s the These decisions thus stand for presclibed statutory jUlY and proved beyond ati 1999 is misplaced unanimous decisions suggests that the jury LSA Const United v do judge sitting alone 530 U S 296 Jersey 530 and Jones address U S 536 U S 584 New v 143 L Ed 2d 311 assessment of facts the trial U S 1 Cir App La the 410 So 2d Belgard v right to Oregon 406 v beyond the prescribed statutOlY maximum is for submitted v Ring 2002 the proposition that any fact other than penalty a criminal a decisions a non issue of whether the 2004 119 S Ct 1215 Court of State 97 1885 pp Blakely 153 L Ed 2d 556 a violate concur 164 65 159 L Ed 2d 403 for jurisprudence Apodaca 1972 Shanks v 124 S Ct 2531 466 See 32 L Ed 2d 184 The defendant s reliance These not must by jury specified by the Sixth Amendment and made applicable 404 US and federal state of whom ten v in these Accordingly 782 A are defendant s not Sixth Furthermore issue before this rejected by this Cir 6 9 06 note that See State court reasons adjudication appellate In each court 938 So 2d 147 For the offender we This case v and sentences repeatedly raised this the identical argument has been Caples 2005 2517 assignment stated herein CONVICTIONS counsel has p 15 La habitual affirmed AFFIRMED HABITUAL ADJUDICATION AND SENTENCES AFFIRMED 11 1 of elTor is without merit the defendant s convictions are App OFFENDER

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