State Of Louisiana VS Larry Mitchell
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 KA 2184 STATE OF LOUISIANA VERSUS LARRY MITCHELL Judgment Rendered May 7 2010 On Appeal from the 22nd Judicial District Court in and for the Parish of St Tammany State of Louisiana District Court No 451323 The Honorable Peter J Garcia Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington La Kathryn W Landry Baton Rouge La State of Louisiana Kevin V Boshea Metairie La Counsel for The defendant Appellant Larry Mitchell Larry Mitchell Appearing Pro Se Tallulah La BEFORE CARTER C GUIDRY AND PETTIGREW JJ J CARTER C J The defendant Larry Mitchell was charged by bill of information with one count of armed robbery a violation of La R 14 S 64 The defendant entered a plea of not guilty and proceeded to trial before a jury A unanimous jury determined the defendant was guilty as charged The trial court sentenced the defendant to a term of twenty years at hard labor without benefit of probation parole or suspension of sentence The State subsequently instituted habitual offender proceedings against the defendant Following a hearing the trial court adjudicated the defendant a fourth felony habitual offender The trial court vacated the original sentence and imposed a sentence of fortyfive years at hard labor The defendant appeals citing the following counseled assignments of error 1 The district court erred in denying the motion to continue trial 2 The district court erred in adjudicating the defendant as a multiple offender 3 The verdict is contrary to the law and evidence 4 The district court erred in the denial of the motion for new trial 5 The district court erred in the denial of the motion for mistrial 6 The district court erred in denying the motion for post verdict judgment of acquittal The defendant also filed a pro se brief in which he cited the following error 7 The evidence is insufficient to prove guilt of armed robbery 2 For the reasons that follow we affirm the defendant conviction s habitual offender adjudication and sentence FACTS On May 11 2008 Jonathan Johnson and Keoka Geary were both working at the Kangaroo convenience store on Voter Road in Slidell At s approximately 7 p Geary briefly left her register to get a drink 00 m Johnson became aware that there were two men in the stock room Because the stock room was off limits to customers Johnson walked over to determine why the men were there When he reached the stock room Johnson observed two men one later identified as the defendant each filling a trash bag with cartons of cigarettes Johnson asked the men what they were doing but they merely looked up and continued placing the cartons into the bags Several seconds later the two men walked outside the store as Johnson followed them The defendant and the other man walked outside the store toward a black Infiniti that was backed into a space in front of the store Johnson who was now outside the store grabbed the bag that the defendant carried over his shoulder The defendant turned and raised his shirt revealing a pistol tucked into his pants Johnson then backed away noted the license plate number of the vehicle the men entered and returned inside to report the incident to the police Johnson admitted when he called 911 he failed to indicate one of the men was armed At trial Johnson explained the sight of the pistol had made him fearful and shook Johnson reported the license plate number to the police as OME661 3 During the ensuing investigation by the Slidell Police Department the license number was traced to a black Infiniti registered to Penny Hicks Hicks was contacted at her residence in New Orleans and the vehicle towed while a search warrant was obtained During this investigation the defendant was developed as a suspect Although the vehicle was searched pursuant to a warrant no significant evidence was recovered Photographic lineups were prepared including a photograph of the defendant These lineups were separately shown to Johnson and Geary and both identified the defendant as the man who participated in the robbery and raised his shirt to reveal a pistol The defendant was subsequently arrested and charged with armed robbery His accomplice was never identified At trial both Johnson and Geary identified the defendant in court as the perpetrator of this offense The defendant did not testify DENIAL OF MOTION TO CONTINUE TRIAL In his first counseled assignment of error the defendant argues the trial court erred in denying his motion to continue the trial Specifically the defendant contends that his trial counsel Robert Stamps replaced prior counsel Lionel Burns on April 29 2009 The trial court then reassigned the matter to be tried on May 18 2009 Stamps filed two motions to continue the trial which were both denied by the trial court In support of this assignment of error the defendant argues that Stamps only had thirteen working days from April 29 May 18 to prepare for the instant armed robbery trial during which time period Stamps also was preparing for a vehicular homicide case in another court The defendant 4 asserts Stamps was forced to prepare for the armed robbery case in such a short time span from scratch The defendant further contends that pretrial discovery was not completed until May 4 and there were several motions to suppress filed but never heard prior to trial The trial court has great discretion in deciding whether to grant a continuance and its ruling will not be overturned absent an abuse of discretion La Code Crim P art 712 State v Champion 412 So 1048 2d 10501051 La 1982 Even when an abuse of discretion is shown typically a conviction will not be reversed based on denial of a continuance absent a showing of specific prejudice State v Castleberry 98 1388 La 4 99 13 758 So 749 756 cert denied 528 U 893 120 S 220 145 L 2d S Ct 2d Ed 185 1999 The defendant argues the requirement for specific prejudice will be disregarded when the time allowed counsel to prepare is so minimal that the fairness of the proceedings is questionable However we note that in the case law cited by the defendant the courts have held that the reasonableness of the trial court discretion turns on the circumstances of the particular s case In examining the jurisprudence cited by the defendant in State v Winston 327 So 380 383 384 La 1976 the supreme court held three 2d days was not enough time to prepare an adequate defense where prior to the sappointment eight months had elapsed since the offense occurred attorney Defense counsel repeatedly informed the trial court that he was unprepared Winston 327 So at 383 2d The supreme court recognized that counsel should have been afforded more time to search for witnesses Id 5 Other cases cited by the defendant involved circumstances wherein defense counsel had never spoken with the defendant and learned on the date of trial of their representation See e State v Knight 611 So 1381 g 2d 1383 La 1993 counsel appointed on first day of trial State v Simpson 403 So 1214 1216 La 1981 counsel made aware of appointment on 2d the first day of trial and State v Commodore 2000 0076 La App 4 Cir 00 21 11 774 So 318 320321 writ denied 20003485 La 11 2d 01 2 800 So 869 counsel and defendant had never spoken 2d In State v Laugand 991124 99 1327 La 3 759 So 34 per curiam 00 17 2d defense counsel was appointed a month prior to trial On the first day of trial defense counsel sought a continuance explaining that he had just completed another unrelated trial the day before the defendant strial was scheduled to commence Laugand 759 So at 36 Concluding the trial 2d court should have granted the continuance the supreme court observed that slack of preparation was evident from the record the trial court had counsel to intervene to help counsel from pursuing matters directly adverse to the defendant Laugand 759 So at 36 2d However in State v Malinda 95 292 La App 5 Cir 10 95 31 663 So 882 886 the Fifth Circuit held the time afforded defense counsel 2d to prepare for an obscenity trial was not so minimal as to undermine the fairness of the proceedings Defense counsel had actively represented the defendant for two months prior to trial and although he indicated he was surprised when the State filed another bill of information charging the defendant with a third or subsequent obscenity offense he never stated he was unprepared for trial Malinda 663 So at 886 2d T Further the court noted that the defendant failed to show any specific prejudice resulting from the denial of the motion for continuance Malinda 663 So at 886 2d We find the circumstances of the present case distinguishable from the case law cited by the defendant The defendant initial contention that his s thirteen day period to prepare this case from scratch undermined the fairness of the proceedings is not supported by the record First although the instant offense is a serious crime with a maximum penalty of ninety nine years the State case was presented through the testimony of two s eyewitnesses and the investigating police officer The defendant does not complain that the short time period deprived him of locating alibi or other witnesses for his defense Moreover the defendant claim that he was s preparing from scratch is contradicted by the record Stamps was counsel of record until November 6 2008 when Lionel Burns enrolled as counsel There is no indication in the record that Stamps withdrew Prior to the enrollment of Burns on August 12 2008 Stamps was provided openfile discovery and attached documentary material by the State Next Stamps requested further discovery in the form of fingerprint evidence and juvenile records of a State witness which were determined to be unavailable because there was no such evidence Stamps ultimately agreed that there was no new discovery than what had been produced previously to him Although defense counsel argued the fact that the time period for advising the use of an alibi witness had expired the trial court stated an alibi witness would be allowed I No alibi witnesses were presented at trial 7 Finally there is no merit to the contention that there were outstanding motions to suppress seeking to suppress derivative evidence that were not heard prior to trial This argument surrounds a statement made by the s defendant wife Penny Hicks who was interviewed by the police The State explained that during the testimony of Detective Sean McClain the prosecutor purposely did not ask about the substance of the Hicks interview Moreover the prosecutor reminded the trial court that Hicks had asserted the marital privilege in refusing to testify at trial outside the presence of the jury Accordingly no evidence was presented that would have been the subject of this particular motion to suppress evidence Considering that trial counsel had twenty days to prepare the defense in this matter and was able to cross examine the State eyewitnesses to the s crime as well as considering the lack of any indication that the denial of a continuance caused any specific prejudice to the defendant we cannot say this ruling was an abuse of discretion This assignment of error is without merit SUFFICIENCY OF THE EVIDENCE In the defendant scounseled assignments of error three four and six and his sole pro se assignment of error he challenges the sufficiency of the evidence used to support his conviction In his counseled assignments of error the defendant points to the fact no stolen property was recovered no firearm was recovered no second suspect was ever identified and the only evidence supporting the contention that the defendant was armed was the testimony of Johnson which is contradicted by what Johnson told the 911 operator 0 In reviewing the sufficiency of the evidence to support a conviction a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v Virginia 443 U 307 319 99 S Ct S 2781 2789 61 L560 1979 That standard of appellate review 2d Ed adopted by the legislature in enacting La Code Crim P art 821 is whether the evidence when viewed in the light most favorable to the prosecution was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt State v Brown 2003 0897 La 4 907 So 1 18 cert denied 547 U 1022 126 05 12 2d S Ct S 1569 164 L305 2006 2d Ed An appellate court is constitutionally precluded from acting as a thirteenth juror in assessing the weight to give evidence in criminal cases See State v Mitchell 99 3342 La 10 772 So 78 83 00 17 2d As the trier of fact a jury is free to accept or reject in whole or in part the testimony of any witness State v Richardson 459 So 31 38 La App 2d 1st Cir 1984 Moreover where there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency Richardson 459 So at 38 Thus the fact that the 2d record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence supporting the verdict insufficient State v Azema 633 So 723 727 La App 1st Cir 1993 writ denied 2d 940141 La 4637 So 460 94 29 2d In accordance with La R 14 armed robbery is the taking of S 64A anything of value belonging to another from the person of another or that is Z in the immediate control of another by use of force or intimidation while armed with a dangerous weapon Armed robbery is a general intent crime State v Payne 540 So 520 523 La App 1st Cir writ denied 546 2d 2d So 169 La 1989 In general intent crimes the criminal intent necessary to sustain a conviction is shown by the very doing of the acts that have been declared criminal Payne 540 So at 523 524 2d The defendant argument that the 911 tape contradicts Johnson s s testimony that the defendant was armed is erroneous At trial Johnson acknowledged that he failed to tell the 911 dispatcher that the defendant was armed explaining that he was shook by the entire episode Such failure to provide every detail does not equate to Johnson stating that the defendant was not in fact armed at the time of the robbery Both Johnson and Geary testified they saw a pistol tucked into the defendant pants which the s defendant revealed when Johnson attempted to stop him by grabbing the trash bag The testimony of the victim alone is sufficient to prove the elements of the offense State v Orgeron 512 So 467 469 La App 2d 1 st Cir 1987 writ denied 519 So 113 La 1988 2d Viewing the evidence in the light most favorable to the prosecution both Johnson and Geary identified the defendant as the individual who left the store with a trash bag filled with cartons of cigarettes for which he did not pay Both eyewitnesses saw the defendant reveal his possession of a pistol when Johnson attempted to stop him from leaving the store premises The fact that the defendant accomplice was never apprehended has no s bearing on the jury determination of the defendant guilt Further the s s jury was aware that the vehicle in which the defendant left the store was 10 searched several days following the incident and that none of the stolen cigarettes or the weapon possessed by the defendant were recovered However recovery of the merchandise and weapon are not required in proving the defendant committed the instant armed robbery In his pro se brief the defendant argues that the facts at trial merely show a theft was committed and that the display of a gun in the perpetrator s waistband after the theft occurred fails to change the theft to an armed robbery We disagree The fact that the defendant revealed his possession of a weapon tucked into his pants was in direct response to Johnson s attempt to stop the robbery Clearly the jury determined the defendant revealed the weapon to further the robbery and his successful escape See State v Meyers 620 So 1160 1163 La 1993 Thus the jury verdict 2d s that the defendant committed an armed robbery was rationally based on the evidence presented The evidence is sufficient to support the conviction of armed robbery These assignments of error are without merit HABITUAL OFFENDER ADJUDICATION Through his second assignment of error the defendant argues the trial court erred in adjudicating him as a fourth felony habitual offender Specifically the defendant contends the State failed to carry its requisite burden of proof with regard to the defendant identity as the perpetrator of s the three previous crimes and the State failed to show the defendant properly waived his rights In support of this argument the defendant contends that the evidence used by the State was uncertified and therefore incompetent 11 The State filed a multiple offender bill alleging the defendant committed the following predicate offenses 1 A November 26 2002 guilty plea in docket number 429 570 of Orleans Parish to the offense of theft of goods over 00 100 La R 14 S 67 10 2 An October 30 1992 guilty plea in docket number 357 428 of Orleans Parish to the offense of possession of cocaine La S 967 R 40 3 A December 18 1991 guilty plea in docket number 353 387 of Orleans Parish to the offense of felony theft La R S 67 14 If the defendant denies the allegations of the bill of information the burden is on the State to prove the existence ofthe prior guilty pleas and that the defendant was represented by counsel when the pleas were taken State v Shelton 621 So 769 779 La 1993 If the State meets this burden 2d the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea Shelton 621 So at 779 Ifthe defendant is able to do this then the 2d burden shifts to the State Id The State will meet its burden of proof if it introduces a perfect transcript of the taking of the guilty plea one that reflects a colloquy between the judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury his privilege against self incrimination and his right to confront his accusers Shelton 621 So at 779 780 If the State introduces anything 2d less than a perfect transcript for example a guilty plea form a minute entry an imperfect transcript or any combination thereof the judge then must weigh the evidence submitted by the defendant and the State to determine whether the State has met its burden of proving that the defendant prior s 12 guilty plea was informed and voluntary and made with an articulated waiver of the three Boykin rights Shelton 621 So at 780 The purpose of the 2d rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea in which the appellate court may not presume a valid waiver of rights from a silent record and a collateral attack on a final conviction used in a subsequent recidivist proceeding as to which a presumption of regularity attaches to promote the interests of finality See State v Deville 2004 1401 La 7 879 So 689 691 04 2 2d per curiam The defendant argues the penitentiary pack pen pack introduced by the State should not have been admissible because only the cover sheet was certified In examining the pen pack we note the affidavit from the custodian of records attached to the front of the document clearly references the attached documents as true copies of the defendant s records with the Louisiana Department of Public Safety and Corrections Other circuits have held that the custodian certification on the cover s of pen pack attachments is sufficient and that each page need not be individually certified See La R 15 La Code Evid arts S 529 117 b 2 902 904 State v Ayche 2007 753 La App 5 Cir 3 978 08 11 2d So 1143 1151 1153 writs denied 2008 2291 La 1 999 So 09 30 2d 752 2008 1115 La 2 999 So 1140 State v White 28 La 09 13 2d 095 App 2 Cir 5 674 So 1018 1029 writs denied 961459 La 96 8 2d 96 15 11 682 So 760 98 0282 La 6 719 So 1048 Thus we 2d 98 26 2d find the pen pack evidence introduced by the State was properly admitted 13 The pen pack included a minute entry dated November 26 2002 indicating the defendant who was represented by counsel entered a guilty plea in docket number 429 570 to the offense of theft The pen pack also contained a minute entry dated October 30 1992 indicating the defendant who was represented by counsel entered a guilty plea in docket number 357 428 to the offense of possession of cocaine The State also introduced a certified copy of a minute entry dated December 18 1991 indicating the defendant who was represented by counsel entered a guilty plea in docket number 353 387 to the offense of felony theft The defendant also contends that the State failed to prove his identity with regard to these three prior convictions We disagree The State presented the testimony of Tommy Morse who was accepted by the trial court as an expert in fingerprint examination and identification Morse testified that he took the defendant fingerprints on the morning of the s habitual offender hearing Morse testified that the defendant identified himself as Larry Mitchell date of birth July 18 1971 and social security number 438 XXXXXX Morse also obtained a print card from the AFIS database for a Moya Jackson a Charles Mitchell with a date of birth of k July 18 1972 and a social security number of 438 XXXXXX Morse testified he could not positively match the prints he took from the defendant that morning to the prints contained on the bill of information in docket number 429 570 due to the quality of the prints but the AFIS print card that matched the date of arrest for that docket number and another 2 According to each minute entry associated with these prior convictions the defendant was advised of his rights prior to entering his guilty plea 14 print card contained in the pen pack both matched the prints taken the morning of the hearing Likewise in docket number 357 428 the bill of information in the pen pack did not contain fingerprints however Morse was able to match the prints on the arrest register associated with this conviction to the prints he took from the defendant that morning In docket number 353 387 because of the poor quality of the prints on the bill of information Morse used the prints on the arrest register associated with this conviction and was able to determine these prints matched the prints he took of the defendant prior to the hearing Based on the foregoing we find the State sustained its initial burden of proof in that the defendant had three prior convictions and was represented by counsel at the time the pleas were taken Thus it became the s defendant burden to produce some affirmative evidence indicative of an infringement of rights or procedural irregularity in the taking of these pleas The defendant put forth no such evidence thus we find the trial court properly adjudicated the defendant as a fourth felony habitual offender This assignment of error is without merit DENIAL OF MOTION FOR MISTRIAL In his fifth counseled assignment of error the defendant contends the trial court erred in denying his motion for mistrial However the s defendant brief fails to include any argument or reference to this assignment of error Accordingly under Uniform Rules Courts of Appeal Rule 2 12 this assignment of error is considered abandoned 4 15 CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 16
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
