State Of Louisiana VS Desmond Henderson
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 0461 STATE OF LOUISIANA VERSUS DESMOND HENDERSON v L Judgment Rendered September 10 2010 Appealed from the First Twenty Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 802 060 Honorable M Douglas Hughes Judge Scott M Perrilloux District Attorney Patricia Parker Asst District Attorney Attorneys for State Appellee Amite LA Prentice L White Baton Rouge LA Attorney for Defendant Appellant Desmond Henderson BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J The defendant Desmond Henderson was charged by bill of information with aggravated burglary a violation of La R 14 The defendant entered a S 60 plea of not guilty After a trial by jury the defendant was found guilty as charged The defendant was sentenced to ten years imprisonment at hard labor The defendant now appeals assigning error as to the sufficiency of the evidence and the trial court denial of his motion for mistrial For the following reasons we s affirm the conviction and sentence STATEMENT OF FACTS On or about December 1 2007 David Toler the assistant general manager of Aaron Sales and Lease Store in Hammond Louisiana arrived at work at s approximately 7 a After he exited his truck and began walking towards the 15 m store entrance Toler observed an approaching individual Toler noted that the individual was an AfricanAmerican male wearing baggy pants and a hooded sweatshirt despite the warm weather Toler proceeded to unlock the store door Just after he opened the door and turned back the man ran towards him As Toler attempted to close the door the man placed his foot in the doorway and pointed a gun at Toler face and a physical altercation ensued Toler and the individual s stumbled out of the store as they fought The physical struggle ended when the assailant ran towards the parking area of a neighboring store and Toler ran towards his truck Toler observed the assailant enter the passenger side of a fourdoor gold vehicle he believed to be a Cadillac stopped in the parking lot with the engine running The vehicle was driven from the scene Toler drove his truck to a co s worker home across the street from the store contacted the police and returned to the scene The defendant was originally charg ed with armed robbery and the State later amended the bill of information 2 Sergeant Thomas R Miller of the Hammond Police Department responded to a dispatch regarding the incident secured the scene and interviewed Toler Detective Mark Jones was assigned to the investigation of the case Toler provided a description of the assailant and the getaway vehicle On December 6 2007 in a photographic lineup Toler identified the defendant as the assailant ASSIGNMENT OF ERROR NUMBER ONE While the defendant does not dispute that someone approached Toler with a handgun and threatened his life if he did not give him money from inside the store he disputes the identification of him as the armed assailant Noting that the surveillance video was erased several days after the incident the defendant contends that Toler in vital part based his identification on the contents of the video The defendant argues that the jury should not have found him guilty without viewing the video and contends that there was evidence to show that Toler pinpointed the defendant simply because he remembered him from his former employment at another Aaron store The defendant specifically contends that s Toler may have remembered his face from a prior meeting at one of the stores The defendant concludes that the State failed to negate any reasonable probability of misidentification 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 defendant identity as the perpetrator of that s crime beyond a reasonable doubt See La C art 821 Jackson v Virginia P Cr 443 U 307 319 99 S 2781 2789 61 L 560 1979 State v Johnson S Ct 2d Ed 461 So 673 674 La App I Cir 1984 When analyzing circumstantial 2d evidence La R 15 provides that the trier of fact must be satisfied that the S 438 overall evidence excludes every reasonable hypothesis of innocence 3 State v Graham 20021492 p 5 La App I Cir 2 845 So 416 420 When a 03 14 2d 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 1 Cir writ denied 514 So 126 2d 51 2d La 1987 Aggravated burglary is in pertinent part the unauthorized entering of any structure where a person is present with the intent to commit a felony or any theft therein if the offender is armed with a dangerous weapon or commits a battery upon any person while in such place or in entering or leaving such place La R S 60 14 A dangerous weapon is defined as an instrument which in the manner used is calculated or likely to produce death or great bodily harm La R S 3 2 14 Louisiana Revised Statutes 14 defines a battery in pertinent part as 33 the intentional use of force or violence upon the person of another When the key issue is the defendant identity as the perpetrator rather than whether the crime s was committed the State is required to negate any reasonable probability of misidentification State v Holts 525 So 1241 1244 La App 1 Cir 1988 2d St Positive identification by only one witness may be sufficient to support the s defendant conviction State v Andrews 940842 p 7 La App I Cir 5 95 655 So 448 453 2d As noted the defendant does not contest the elements of aggravated burglary only his identity as the perpetrator The incident in question occurred on Saturday the first of the month Toler noted that it was a busy weekend for the store as people received their paychecks the previous day and rental payments were due at that time He further noted that between 25 and 30 was in the store at the time In accordance 00 000 00 000 with policy the store did not make night deposits funds were deposited on Saturday momings As assistant manager Toler had access to the store safe and s El was responsible for the accounts receivable Toler arrived early to open the store for other employees scheduled to arrive at 7 a He indicated that all of the 30 m stores had the same procedure Toler stated that he was suspicious of the male individual at first sight because of his attire the fact that it was early in the morning before the store s opening and it was unusual for someone to be walking in that area at that time The assailant knelt down just before approaching Toler Toler paid attention to the assailant from the moment he knelt down to the point he abruptly approached He momentarily lost sight of the assailant as he unlocked the door but the assailant approached Toler just as he turned back after opening the door Toler testified that he looked at the assailant face as the assailant entered the building The assailant s was approximately one or two feet away from him when he pulled a gun from his sweatshirt pointed it at Toler face and mentioned money At that point he was s still wearing a hood on his head but it slightly slid away from his forehead In an attempt to avoid being shot Toler began swinging at the assailant when he saw the gun He specifically stated that he swung towards the individual face In the s midst of the struggle Toler was able to get another look at the assailant face after s they stumbled outside of the store and the assailant raised the gun again and pointed it at Toler face The entire incident took place within three minutes or s less After the incident Toler watched the surveillance video Toler testified that although the video captured the altercation it would have been tough to see his or the perpetrator face on the video The video was recorded in black and white s Toler notified the police of the recording existence Toler stated that the video s described as a security stealth video was not on a removable cassette or disk and was subsequently automatically erased or recorded over Toler and the regional vice president did not know how to download or retrieve the recording from the 5 hard drive Toler watched the video a few other times that day with other Aaron s employees before it was erased He testified you really couldn tell anything I t mean it happened the altercation happened so fast So I mean me seeing it five times or seeing it fifty wouldn have made any difference Toler stated that he t did not rely on the video in identifying the assailant Toler also testified that he did not know the assailant in any way prior to the incident in question Toler confirmed his photographic lineup selection and identified the defendant as the assailant in court Toler testified that he was immediately able to pick the assailant from the photographic lineup mainly focusing on the individual eyes s s individual face Toler also remembered the rest of the After the incident Toler learned that the defendant was a previous general manager for an Aaron store located in New Orleans Toler did s not recall any contact with the defendant in that capacity and was unaware of the time period of the defendant employment Toler confirmed that he had no doubts s as to the defendant identity as the perpetrator During cross examination Toler s admitted that he was frightened during the incident and his adrenaline was elevated He also stated that he attended corporate regional meetings several times monthly that included the New Orleans store The general managers did not attend those meetings Toler began working for Aaron in November of 2006 Toler s admitted that he and the defendant crossing paths was not out of the realm of possibility although he did not recall such an occurrence Based on our review of the evidence a rational trier of fact could have concluded that the State negated any reasonable probability of misidentification Toler was suspicious of and observed the assailant before the altercation took place He was able to get a good look at the assailant face when he was accosted s at gunpoint His identification was made with certainty and specificity The other essential elements of the offense are not in dispute M 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 aggravated burglary and the s defendant identity as the perpetrator of that offense Thus this assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER TWO In his second assignment of error the defendant argues that the trial court erred in denying his motion for mistrial based on the State rebuttal closing s argument in the presence of the jury that the defendant should have presented evidence to establish his innocence The defendant specifically argues that he was entitled to a mistrial pursuant to La C art 775 P Cr 3 The defendant further contends that the State remarks violated his constitutional right to remain silent s and undermined the basic principle that the defendant is not obligated to put on a defense or even to testify The defendant contends that the damage was already done before the trial court sustained the defense objection and that the admonishment was insufficient to correct the wrong The defendant contends that he was denied a fair trial and that it is incumbent upon this court to reverse the trial s court ruling and order that he be given a new trial Closing arguments in criminal cases shall be limited to the evidence admitted the lack of evidence conclusions of fact that may be drawn therefrom and the law applicable to the case La C art 774 A prosecutor should P Cr refrain from argument that tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury verdict s State v Messer 408 So 1354 1356 La 1982 2d The argument shall not appeal to prejudice The State rebuttal shall be confined to s answering the argument of the defendant 7 La C art 774 P Cr However prosecutors have wide latitude in choosing closing argument tactics State v Casey 990023 p 17 La 1 775 So 1022 1036 cert denied 531 U 00 26 2d S 840 121 S 104 148 L 62 2000 A conviction will not be reversed Ct 2d Ed because of an improper closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict State v Bates 495 So 1262 1273 La 1986 cert denied 481 U 1042 107 2d S Ct S 1986 95 L 826 1987 Much credit should be accorded to the good 2d Ed sense and fair mindedness of jurors who have seen the evidence heard the argument and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence State v Dilosa 2001 0024 p 22 La App 1 Cir 5S 03 9 5 849 So 657 674 writ denied 20031601 La 12 860 So 2d 03 2d 1153 In accordance with La C art 775 a mistrial may be ordered when P Cr 3 there is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law Article 775 further states that the defendant motion for a mistrial shall be ordered when prejudicial s conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by Article 770 or 771 Louisiana Code of Criminal Procedure article 770 provides that a mistrial shall be granted upon 3 motion of the defendant when a remark or comment is made within the hearing of the jury by the judge district attorney or a court official during trial or in argument and that remark refers directly or indirectly to the failure of the defendant to testify in his own defense Louisiana Code of Criminal Procedure article 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under Article 770 Mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the accused to deprive 0 him of a fair trial State v Booker 20021269 pp 1748 La App V Cir 03 14 2 839 So 455 467 writ denied 2003 1145 La 10 857 So 2d 03 31 2d 476 A trial court ruling denying a mistrial will not be disturbed absent an s abuse of discretion State v Givens 993518 p 12 La 1 776 So 01 17 2d 443 454 Prior to the defense objection and motion for mistrial the following statements were made during the prosecution rebuttal closing argument s Again there has not been one scintilla of evidence presented that is contrary in any way shape or form to what Mr Toler told you not one bit of evidence And if any of you have any doubt whatsoever in just a little bit when you deliberate I ask that you ask yourself this one question and that question being If I was the Defendant and I was being wrongfully accused okay I wasn there I didn do it I wasn even t t t the driver in the car what would I do At this point the defense counsel objected stating He doesn have to put on a t defense The trial court overruled the objection agreeing with the State s assertion that it was not alleging that the defendant had to put on a defense but simply instructing the jurors to ask themselves what they would do The prosecution continued as follows My question is What would you do in that situation Me I would find an aunt a momma a sister a girlfriend a wife somebody who could say I was somewhere else ve You not heard any evidence At this point the trial court sustained the defense renewed objection and removed s the jurors The defense counsel in part stated He telling us that we have to the s jury that we have to that we did not put on a defense that we did not contradict it that we did not put on evidence Your Honor we don have an obligation to put t on evidence After hearing opposing arguments the trial court concluded that the State was getting dangerously close to informing the jury that they should have put on a defense The trial court struck the line of argument out of an abundance I7 of caution The defense moved for a mistrial and the trial court denied the motion but stated that it would admonish the jury The trial court in part instructed the jury not to ponder the line of questioning and argument proposed by the State After the admonishment the State concluded its rebuttal closing argument without further objection In State v Falkins 2004250 La App 5 Cir 7 880 So 903 04 27 2d writs denied 2004 2220 La 1 889 So 266 20042171 La 5 05 14 2d 05 20 902 So 1045 the evidence showed that Floyd Falkins defendant therein and 2d Larry Simms not a party to the appeal entered a Hibernia National Bank and robbed four tellers while armed with guns The State also introduced evidence to show that after the robbery Falkins and Simms got into a vehicle being driven by Dwayne Simms defendant therein and they fled the scene Among the State s witnesses were bank tellers and Jean D Pierre a witness who testified that she was in a Rite Aid parking lot when she observed two men coming from Hibernia toward the Rite Aid parking lot Pierre observed the individuals as they got into a vehicle in the parking lot behind Rite Aid During the cross examination of Pierre the defense counsel suggested that Dwayne Simms was parked in front of a s doctor office and had been inside of that office During rebuttal argument the prosecutor in part stated if it had been there for him to go in the doctor office s why didn you hear somebody from the doctor office come here and say oh t s yeah Mr Simms had a doctor visit that day s Falkins 2004250 at p 18 880 2d So at 915 In objecting and moving for a mistrial the defense counsel stated I did not put on a case there were no witnesses to put on and for counsel to suggest I should have called the doctor or anybody else is improper adding there no s burden on the defendant to call witnesses Falkins 2004250 at pp 1819 880 2d So at 915 The trial court denied the motion but instructed the jury that the defendants are not required by law to call any witnesses or produce any evidence 11011 The Fifth Circuit Court of Appeal found that the statements were not sufficient to influence the jury verdicts and did not warrant a mistrial Falkins 2004 250 at p s 21 880 So at 917 2d Similarly herein we reject the defendant argument on appeal that a s mistrial was warranted by La C art 775 The comments in question did not P Cr constitute a legal defect in the proceedings or make it impossible for the defendant to obtain a fair trial During closing argument the defense counsel thoroughly questioned the witness ability to positively identify the defendant as the assailant s During its rebuttal argument the State made reference to the lack of contradictory evidence or testimony by potential witnesses who could have testified on behalf of the defense that the defendant was somewhere else at the time of the offense Considering that the State did not expressly or specifically refer to the failure of the defendant to testify in his own defense the comments were not of the type that would require a mistrial under La C art 770 P Cr Moreover we are not convinced that the remarks in question influenced the jury and contributed to the verdict Thus we do not find that the State remarks caused the defendant s substantial prejudice In addition to the admonishment the trial court in part instructed the jury that the defendant is presumed to be innocent is not required to prove that he is innocent and further instructed the jury regarding the State s burden of proof The trial court also informed the jury that opening statements and closing arguments made by the attorneys are not evidence Considering the entirety of the record we do not find that the trial court abused its discretion in denying a mistrial based on these comments by the State Accordingly we find that this assignment of error lacks merit REVIEW FOR ERROR The defendant asks that this court examine the record for error under La P Cr C art 920 2 This court routinely reviews the record for such errors whether such a request is made by a defendant Under La C art 920 we P Cr 2 are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found no reversible errors CONCLUSION For the foregoing reasons the defendant conviction and sentence are s affirmed CONVICTION AND SENTENCE AFFIRMED 12
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.
