State Of Louisiana VS Kerri Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0344 STATE OF LOUISIANA VERSUS KERRI SMITH Judgment Rendered September 10 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 422493 3 D Honorable Peter J Garcia Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington LA State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge LA Mary E Roper Louisiana Appellate Project Baton Rouge LA Counsel for Defendant Appellant Kerri Smith Appellant In Proper Person Angie LA Kerri Smith BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES I The defendant Kerri Smith was charged by bill of information with two counts of armed robbery by use of a firearm in violation of LSAR S 64 14 and 14 He pled not guilty and after a trial by jury was found 3 64 guilty as charged on both counts The defendant was originally sentenced to imprisonment at hard labor for 35 years reconsideration of the sentence The defendant moved for The trial court granted the motion and reduced the defendant sentence to 25 years at hard labor s The defendant appeals asserting two counseled assignments of error regarding his right to counsel an additional counseled assignment of error in which he contends that the new sentences imposed are excessive and three additional pro se assignments of error regarding the composition of the jury hearsay and counsel alleged ineffectiveness s FACTS Around 1 in the afternoon on September 21 2006 the defendant 30 and two other men dressed in black wearing masks and armed with guns entered the Statewide Bank in Slidell A fourth man waited in the car The perpetrators pulled their guns ordered bank employees to the ground physically handled them threatened to kill them and held the guns to the bank employees heads After forcing the tellers to open their money drawers the perpetrators took the money and fled After the Expedition that the defendant used to leave the robbery crashed into another vehicle the defendant attempted to flee into the woods where he struggled with officers and was arrested He was found in possession of a gun at the time of his arrest 2 RIGHT TO COUNSEL In his first two counseled assignments of error the defendant contends that he was denied his constitutional right to assistance of counsel when the court denied his objections to proceeding with appointed counsel who the defendant contends was ill prepared As a general proposition a person accused in a criminal trial has the right to counsel of his choice If a defendant is indigent he has the right to courtappointed counsel See LSA C arts 511 and 513 An indigent P Cr defendant does not have the right to have a particular attorney appointed to represent him An indigent right to choose his counsel only extends so far s as to allow the accused to retain the attorney of his choice if he can manage to do so but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice State v Harper 381 So 468 470 71 La 2d 1980 The trial court cannot be called upon to appoint counsel other than the one originally appointed merely to please the desires of the indigent accused in the absence of an adequate showing that the courtappointed attorney is inept or incompetent to represent the accused State v O Neal 501 So 920 928 La App 2d Cir writ denied 505 So 1139 La 2d 2d 1987 There has been no showing that the defendant courtappointed s attorney was inept or incompetent to represent him On the contrary counsel indicated that he met with the defendant several times to discuss his case and supplied the defendant with every document he received from the District Attorney Counsel further explained that the defendant wanted him to object at what counsel felt were inappropriate times 3 The record shows that counsel cross examined the witnesses against the defendant and otherwise adequately represented him The court in denying the defendant request to dismiss counsel stated it would not allow s the defendant to second guess his lawyer decisions in making evidentiary s objections during the trial and noted that the defendant waited until the second day of trial to ask for a new attorney The court noted that counsel had been handling the trial and that nothing the defendant said supported the contention that counsel was unprepared Likewise we find no support in the record for defendant contention s that counsel was incompetent or that the court erred in denying the s defendant request for new counsel These assignments of error are without merit EXCESSIVE SENTENCE In his third counseled assignment of error the defendant alleges that his sentences are excessive because his participation in the crimes was less than that of his codefendants yet he received the same sentences He further contends that the court decided on the sentences prior to hearing any evidence Prior to trial the following colloquy occurred Counsel Your Honor ve I advised the defendant that the Court had offered on a plea 25 years at hard labor in this matter and in repeated conversations with the defendant he s indicated he does not want to accept that and will rather go to trial Is that correct sir Defendant Yes sir Court Are you ready for the jury Counsel Yes sir On the matter of the defendant I further advise the Court that I have discussed with him all of the facets of this case and what I would anticipate happening at trial as far as the anticipated outcome and all of that He still wants to go ahead with the matter is that correct El Court The reason I ask your attorney to have this discussion with you on the record is that I want you to be very clear about the fact that I have offered a plea in this matter that will not be in existence after trial of this matter I don know what the sentence is going to be It depends t on the facts that I hear during the case I can tell you it will not be less than the sentence I previously offered and I wanted to make sure that counsel stated for the record that he s discussed the facts with you and given you his opinion regarding the likelihood of success in this matter and that you understand that and advise him that you do not want to take the plea At the hearing on the motion to reconsider the original sentencing the court reduced the defendant sentence from 35 years to 25 years noting that s the codefendants had all pled guilty subsequent to the defendant trial and s had received in return for their pleas a sentence of 25 years The court stated that a reduction in the defendant sentence was warranted because his s involvement was no greater than at least and possibly less than some of the other defendants Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against s excessive punishment and is subject to appellate review State v Sepulvado 367 So 762 767 La 1979 State v Lanieu 98 1260 p 12 2d La App 1st Cir 4 734 So 89 97 writ denied 99 1259 La 99 1 2d 99 8 10 750 So 962 A sentence is constitutionally excessive if it is 2d grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering See State v Dorthey 623 So 1276 1280 La 1993 2d A sentence is grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense of justice State v Hogan 5 480 So 288 291 La 1985 A trial court is given wide discretion in the 2d imposition of sentences within statutory limits and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion State v Guzman 991528 991753 p 15 La 5 769 00 16 2d So 1158 1167 The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence LSAC art P Cr 1 894 The trial court need not cite the entire checklist of Article 894 but 1 the record must reflect that it adequately considered the guidelines State v Herrin 562 So 1 11 La App 1st Cir writ denied 565 So 942 La 2d 2d 1990 In light of the criteria expressed by Article 894 a review for 1 individual excessiveness should consider the circumstances of the crime and the trial court stated reasons and factual basis for its sentencing decision s State v Watldns 532 So 1182 1186 La App 1st Cir 1988 Remand 2d for full compliance with Article 894 is unnecessary when a sufficient 1 factual basis for the sentence is shown State v Lanclos 419 So 475 2d 478 La 1982 By his own statement the defendant along with his friends planned to rob a bank They drove around considered different banks and decided on one in particular They then stole a car to use in the robbery The defendant explained that he drove to the bank and went inside while the robbery occurred The defendant had a gun as did his cohorts which he stated that he had bought from a drug dealer One of the victims testified that the defendant and his partners verbally and physically threatened the lives of bank personnel by holding guns to their heads while they took money from the tellers drawers The employees were grabbed yanked and forcefully made to cooperate 2 The defendant suggests that because he only told a lady to get on the floor and otherwise just stood around he is less culpable than the others However the evidence showed that the defendant had a gun and was a principal to the offenses from the moment the plan was conceived Although the defendant faced the potential of 99 years imprisonment the sentences received are actually at the lower end of the spectrum where the minimum sentence was 15 years imprisonment a minimum of 10 years for armed robbery plus an additional five years for use of a firearm and the defendant was sentenced to 25 years imprisonment See LSAR 14 S 64 and 14 Absent a showing of manifest abuse of discretion we will not 3 64 set aside a sentence as excessive Guzman 99 1528 991753 at p 15 769 2d So at 1167 The defendant has failed to show such abuse of discretion Thus this assignment of error lacks merit PRO SE ASSIGNMENTS OF ERROR In his first pro se assignment of error the defendant argues that his jury composition was unconstitutional because two jurors were not legally qualified to serve Of the two jurors of which he complains one was successfully challenged for cause Thus she did not actually serve on the s defendant jury although an apparent error in the record lists her as being sworn in No objections relevant to this prospective juror appear in the record As for the other complained of juror no objections were made to her service An irregularity or error cannot be availed of after verdict unless at the time the ruling or order of the court was made or sought the party made known to the court the action which he desired the court to take or of his objections to the action of the court and the grounds therefor LSA P Cr C art 841A Accordingly this assignment of error is not preserved for appellate review 7 In his second pro se assignment of error the defendant argues that a s State witness Detective Sean McClain was allowed to give hearsay testimony concerning the firing capability of the weapons used during the robbery for which the defendant was on trial The complainedof testimony follows Q The first question is there were a number of weapons involved in this correct A Yes sir Q Do you remember how many A Four Q Were all those weapons different in caliber and size A Yes sir Q Did you personally see to it that those weapons were test fired A Yes sir Q And that all what were the results of those test firing A That they all fired and they were entered into IVIS Q First off they were all fired So the jury understands what does that mean A Basically they were sent to the St Tammany Crime Lab where a technician fires all of the weapons to get a ballistics check and then that ballistics check Defense Counsel Your Honor I object if he didn do this d t He said a technician did it Court I sustain the objection Just lay a better foundation Q Who test fired it A Somebody at the sheriff office lab s E Q Did they report back to you in regards to the results of the test Defense Counsel Your Honor I still object to what somebody else told him or what he read about it He didn do t it Court Overrule the objection Q What were the results of the test firing A That the weapons were fired Reversal for erroneous admission of hearsay is only mandated when there is a reasonable possibility that the evidence might have contributed to the verdict State v Wille 559 So 1321 1332 La 1990 The correct 2d inquiry is whether the reviewing court is convinced that the error was harmless beyond a reasonable doubt Facts to be considered include the importance of the witness testimony in the prosecution case whether the s s testimony was cumulative the presence or absence of evidence corroborating or contradicting the testimony on material points the extent of cross examination otherwise permitted and the overall strength of the s prosecution case See Wille 559 So at 1332 2d We conclude that any error in allowing the testimony was harmless beyond a reasonable doubt See LSAC art 921 Sullivan v P Cr Louisiana 508 U 275 279 113 S 2078 2081 124 L 182 S Ct 2d Ed 1993 In this case the State evidence was strong and any evidence that s the weapons were in good working condition was unnecessary to support the verdict A gun pointed at a robbery victim carries the inherent threat that death or great bodily harm is likely to result The jurisprudence has long held that unworkable or unloaded guns can constitute dangerous weapons when used in a manner likely to produce death or great bodily harm The likelihood of this serious harm can come from the threat perceived by X victims and bystanders The highly charged atmosphere of a pistol robbery is conducive to violence regardless of whether the pistol is loaded or workable because the danger created invites rescue and selfhelp State v Leak 306 So 737 La 1975 State v Levi 259 La 591 250 So 751 2d 2d 1971 This assignment of error is without merit In his final pro se assignment of error the defendant contends that counsel rendered ineffective assistance by failing to move to suppress his confession He argues that he was physically coerced into giving the statement A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I Louisiana Constitution 13 of the In assessing a claim of ineffectiveness a two pronged test is employed The defendant must show that 1 his attorney s performance was deficient and 2 the deficiency prejudiced him Strickland v Washington 466 U 668 687 104 S 2052 2064 80 S Ct 2d Ed L 674 1984 The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or a trial whose result is reliable Strickland 466 U at 687 104 S at 2064 In order to show prejudice S Ct the defendant must demonstrate that but for counsel unprofessional s conduct the result of the proceeding would have been different Strickland 466 U at 694 104 S at 2068 State v Felder 2000 2887 pp 1011 S Ct La App 1st Cir 9 809 So 360 369 70 writ denied 2001 3027 01 28 2d La 10 827 So 1173 Further it is unnecessary to address the 02 25 2d issues of both counsel performance and prejudice to the defendant if the s defendant makes an inadequate showing on one of the components State v Serigny 610 So 857 860 La App 1st Cir 1992 writ denied 614 2d 2d So 1263 La 1993 A claim of ineffectiveness is generally relegated to 10 postconviction proceedings unless the record permits definitive resolution on appeal State v Miller 990192 p 24 La 9 776 So 396 411 00 6 2d cert denied 531 U 1194 121 S 1196 149 L 111 2001 S Ct 2d Ed Under our adversary system once a defendant has the assistance of counsel the vast array of trial decisions strategic and tactical that must be made before and during trial rest with an accused and his attorney The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel State v Folse 623 So 59 71 La App 1st Cir 2d 1993 For purposes of an ineffective assistance of counsel claim the filing of pretrial motions is squarely within the ambit of the attorney trial s strategy and counsel is not required to engage in futility State v Pendelton 96367 p 23 La App 5th Cir 5 696 So 144 156 97 28 2d writ denied 971714 La 12 706 So 450 97 19 2d The record shows that the court heard a motion to suppress the s defendant statement although no written motion appears in the record and the transcript suggests that the Clerk of Court could not locate one The court accepted the motion orally Detective Ralph Morel testified that he took the defendant statement and found him to be cooperative and truthful s Morel denied forcing the defendant to give the statement by threat or promise A digital recording of the statement was offered into evidence The defendant contends that two photographs taken of him after the robbery show that he was physically assaulted while in the custody of the Slidell Police Department However nothing in the record supports the s defendant assertions The record shows that the getaway car was wrecked during the pursuit after the robbery occurred Captain Kevin Swann testified that he saw the defendant attempting to flee from the wreckage Swann chased the defendant caught him and did use knee strikes and some strikes 11 to get the defendant hands from underneath him because Swann had s seen that the defendant had a gun in his possession In ruling the court stated that it did not find that any force threats or promises were made that the statement was made freely and voluntarily without any coercion and denied the motion Because the record fails to support the assertion that counsel was ineffective this assignment of error is without merit CONCLUSION Having found no merit in the defendant assignments of error the s convictions and sentences are affirmed CONVICTIONS AND SENTENCES AFFIRMED 12
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