State Of Louisiana VS Rocarldo Raynard Weiters
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 KA 1920 STATE OF LOUISIANA VERSUS ROCARLDO RAYNARD WEITERS Judgment Rendered 9f x X IC X k jN j 3 a012 k x Appealed from the 22nd Judicial District Court n r In and for the Parish of St Tammany State of Louisiana Case No 486455 The Honorable Reginald T Badeaux III Judge Presiding Walter P Reed Counsel for Appellee District State of Louisiana Attorney Covington Louisiana By Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana Frank Sloan Mandeville Louisiana Counsel for Defendant Appellant Rocarldo Raynard Weiters Rocarldo Appellant Defendant Raynard Weiters Pro Se Angola Louisiana t a4 ic aY BEFORE ie k i GAIDRY McD01 AND HUGHES JJ 1ALD GAIDRY J The defendant Rocarldo Raynard Weiters Rico was charged by amended bill of information with one count of armed robbery with a firearm in violation of La R 14 and R 14 The defendant S 64 S 643 pled not guilty The robbery occurred on January 7 2010 at Grumpy gas s station and convenience store located on Robert Road in Slidell where Ms Keith worked as the stare clerk referred to as the Slidell Robbery s Prior to trial the State filed notice of its intent to introduce evidence under La Code Evid art 404 that the defendant and his co B defendant Gary Gilmore were involved in a similar armed robbery of an adult novelty store in Waveland Mississippi the Waveland Robbery the night after the Slidell Robbery See State v Prieur 277 So 126 130 La 1973 see 2d also State v Millien 2002 La App lst Cir 2 845 So 506 1006 03 14 2d S l4 Since the defense placed the defendant intent at issue the State s sought the admission of evidence of the defendant participation in the s Waveland Robbery to prove the defendant criminal intent in the instant s charge The notice also advised the State intended to introduce evidence under La Code Evid art 801 that while under arrest for an unrelated 4 D matter the defendant requested to speak to the police regarding information The amended bill of information also charged Gary A Gilmore and Ionjaleic A Cagnolatti with the armed robbery with a firearm of Sharon Keith in violation of La R S 64 14 and La R 14 In addition Ionjaleic A Cagnolatti was charged as an S 64 3 accessory after the fact to the armed robbery of Sharon Keith in violation of La R S 64 1a and La R 1425 The record reveals that Gilmore and Cagnolatti were not tried S with the defendant We further note that at times the record mistakenly refers to Cagnolatti as Cannolatti and Rocarldo Weiters as Rocarldo Weithers z In the notice the State also advised of its intent to use evidence that the defendant and Mr Gilmore were also involved in the armed robbery of a Bay St Louis Mississippi gas station four weeks prior to the instant Slidell Robbery and to show the defendant s intent plan and lack of mistake or accident in the instant offense However at the Prieur hearing the State orally modified its notice and stated that it only intended to introduce evidence of the Waveland Robbery 2 about the Slidell Robbery The defendant made three recorded statements to the police that ultimately led to his being charged in the instant matter Over s defense objection the trial court ruled in favor of the State The trial court further ordered an instruction be given to the jury concerning the limited purposes for which the jury could consider the other crimes evidence Following a jury trial the defendant was convicted as charged The State then filed a habitual defendant had four offender bill of information alleging the prior felony convictions The defendant objected Subsequently he stipulated to being a second habitual offender The felony defendant was sentenced to forty and one years at hard labor to be four half served without benefit of probation or suspension of sentence The trial court ardered the sentence to be served concurrently with his sentence in docket number 438161 of the 22 Judicial District Court far the Parish of St Tammany The defendant now appeals urging one counseled and two pro se assignments of error For the reasons set forth below we affirm the s defendant conviction adjudication as a second habitual offender felony and sentence COUNSELED ASSIGNMENT OF ERROR In his sole counseled assignment of error the defendant urges he was denied effective assistance of counsel He alleges three acts of deficient performance by trial counsel 1 When other crimes testimony that implicated the defendant as a principal to obstruction of justice was solicited from co Ionjaleic Cagnolatti trial defendant counsel failed to object or ask for a mistrial or at least an admonition that the jury should disregard the remark 3 The defendant filed a motion to dismiss appellate counsePs assignment of error which this court denied 3 2 Trial counsel failed to object to hearsay testimony the prosecutor solicited from Detective Laura Stepro of the Waveland Police Department concerning co Gary defendant s Gilmore statement to the Waveland Police that the defendant was the person with him during the Waveland Robbery 3 When trial counsel correctly objected to a question concerning other criminal activity the defendant may have discussed with Ms Cagnolatti trial counsel improperly argued the grounds for the objection in the presence of the jury PRO SE ASSIGNMENTS OF ERROR 1 The State failed to meet its constitutional burden of proof beyond a reasonable doubt in the defendant conviction for armed robbery s 2 The trial court erred in admitting other crimes evidence where the State did not prove by clear and convincing evidence the defendant had committed another armed robbery FACTS On January 7 2010 Ms Keith worked the night shift at Grumpy s Around eleven p Ms Keith began preparing the stare for closing One m of Ms Keith usual customers waited in the parking lot while she went s outside to lock up the ice machine The customer left once she was inside the store After she was inside a stocky male wearing black gloves and a black hooded jacket with a black balaclava and camouflage facemask ran into the store and robbed Ms Keith at gunpoint looking like a gun western handle cash Ms Keith described the gun as It had a handle with parts in the long When the gunman reached over the counter Ms Keith opened the register and told him to take all the money Because she was locking up for the night there was not much money in the register The masked gunman rushed around the counter grabbed Ms Keith by her neck shoved her repeatediy and said he was going to kill her The gunman took the money in the cash register about one hundred dollars He fled on foot in the 4 same direction from recorded the events which he entered the store Surveillance cameras As the subsequent investigation unfolded the police leamed the masked gunman was coGary Gilmore defendant THE INVESTIGATION The defendanYsfrrst recorded statement The Slidell Police Department did not have any suspects or leads in the case However that changed when the defendant who was in police custody for an unrelated matter asked to speak to the police about information he had concerning the Slidell Robbery In a January 9 2010 recorded statement the defendant informed the police that on the night of the Slidell Robbery he was visiting a female friend who lived on Walnut Street Several other people were also there including Mr Gilmore who the defendant said he oniy knew as Gary The defendant said everyone was teasing Mr Gilmore about being one of the dumbest criminals Mr Gilmore and a female whose name the defendant claimed he did not know began telling about Mr Gilmore bungled attempt earlier that s night to rob a Slidell convenience store on Thompson Road in Slidell Mr Gilmore entered the Thompson Road convenience store wearing a mask However he got scared and ran out of the store before being noticed by the store cierks After this ill caper Mr Gilmore and his female advised companion surveilled another convenience store but decided against robbing it Next they drove to Grumpy sgas station on Robert Road where Mr Gilmore robbed the store clerk at gunpoint The defendant gave a detailed account of the Slidell Robbery According to the defendant the female and Mr Gilmore waited for the last customer to leave before the female dropped Mr Gilmore off behind s Grumpy Mr Gilmore ran inside the store robbed the clerk and fled on 5 foot to meet up with the female who was waiting down the street Ie further elaborated that as they were driving away Mr Gilmore and the female were nervous because the police quickly responded to the crime scene with lights and sirens The female was concerned that the police would stop them because Mr Gilmare kept turning on the light in the car in order to count the money from the robbery The defendant said Mr Gilmore showed everyone the camouflage mask and the long revolver he used in the robbery barrel According to the defendant everyone laughed when Mr Gilmore said he only got about eighry dollars The details the defendant gave of the Slidell Robbery matched the account given by Ms Keith The defendant statement also contained s details of the crime that were not released to the publia This concerned the police who thought the defendant knew more then he had disclosed in his statement Having enough information at this point to obtain a search warrant for the Walnut Street residence the police decided to interview the defendant again after executing the search warrant The defendant second recarded statement s Slidell Police Detectives Brian Brown and 7eff Theriot executed the search warrant They did not find the gun or any of the items used in the Slidell Robbery However the occupants confirmed that the defendant and Mr Gilmore were there the night of the robbery The occupants also volunteered that the defendant and Mr Gilmore came back the next night The detectives subsequently leamed Mr Gilmore lived in Slidell with his mother and that he had ries to a female who lived in the Bay St Waveland Louis Mississippi area On January 12 2010 the defendant voluntarily gave a second recorded statement Unlike the first statement the defendant placed himself in his car 6 with Mr Gilmore before and after the statement the defendant admitted Slidell knowing In his second Robbery Mr Gilmore He told the detectives that Mr Gilmore would occasionally call and ask the defendant for a ride when he wanted to see one of the females who lived at the Walnut Street residence The defendant even picked out Mr Gilmore from a photo up line In this second version Mr Gilmore called the defendant and asked for a ride to a female house s The defendant agreed assuming Mr Gilmore wanted Yo be dropped off at the Walnut Street residence Before he picked up Mr Gilmore the defendant stopped and picked up a female companion whose name he claimed he could not recall After Mr Gilmore got into the car he asked to be dropped off at a different female house located in a s neighborhood off Robert Road behind Grumpy Mr Gilmore instructed s the defendant to turn off of Robert Road at a traffic light and then to turn into the neighborhood behind Grumpy The defendant said he dropped s Mr Gilmore off in the yard of the second house on the street After dropping Mr Gilmore off the defendant and his female companion got lost when they attempted to leave through the back of the neighborhood When they could not find their way out of the back of the neighborhood the defendant made a U and made his way back to where turn they first entered the neighborhood When they got to the front of the neighborhood the defendant told the detectives he saw Mr Gilmore casually walking toward the neighborhood brushing his hair offered Mr Gilmore a ride He stopped and Mr Gilmore asked to be taken to the Walnut Street residence The defendant said Mr Gilmore was in the back seat of the car brushing his hair and just being Gary However when they saw Slidell 7 police cars approach the intersection the defendant said Mr Gilmore suddenly dropped down in the seat The defendant who was drinking a beer was concerned that Mr Gilmore sactions might attract the attention of the police So he pulled over At this point the defendant said he began thinking something was wrong Mr Gilmore began tripping and turned on the car light and started counting money Mr Gilmore kept repeating to himself that the store clerk would not give him the money he had to slam her around and he had to get out of here and go to Walnut Street According to the defendant Mr Gilmore wanted the defendant to take some of the money but he refused because he wanted no part of the robbery As Mr Gilmore was attempting to divide the cash the defendant said he saw the barrel of Mr Gilmore s gun The defendant told the detectives that he became concerned about Mr s Gilmore state of mind because Mr Gilmare was acting agitated and kept saying he was not going to jaiL The defendant believed he may be in harm s way and felt like he had no choice but to take Mr Gilmore to Walnut Street When they got to the Walnut Street residence Mr Gilmore accidentally dropped a camouflage mask on the ground as he got out of the car The defendant said he left immediately after dropping Mr Gilmore off at the Walnut Street residence He dropped off his female companion at a house located off McArthur Street and went straight home to his family The defendant stwo children and the mother of the children Heather lived with her father Donald Parks at his home The defendant also lived in Mr shome Parks Throughout the interview the defendant was adamant that he had no knowledge that Mr Gilmore was intending to rob Grumpy swhen he picked 8 up Mr Gilmore from his home ar when he later stopped to give him a ride He told the detectives that he had not seen or talked to the female since that night However if the detectives could locate her he was sure she would verify what occurred that night Investigation leading to the defendant sthird recorded staternent By this point in the investigation Detective Brown had contacted a narcotics officer he knew in Mississippi in hopes of finding Mr Gilmore The narcotics officer was aware of a similar style armed robbery of an adult novelty store in Waveland the night after the Slidell Robbery The narcotics officer gave Detective Brown the names of two Waveland Police Department detectives Laura Stepro and John Salterelli who were investigating the Waveland Robbery and suggested he contact them Detective Brown learned that two perpetrators committed the Waveland Robbery and the robbery was recarded by the store video s surveillance camera One of the Waveland Robbery perpetrators wore a camouflage mask black clothing and was armed with a long gun barrel The other perpetrator wore camouflage overalls and a black balaclava that had one large open for the eyes and bridge ofthe nose The Waveland area detectives drove to Slidell and showed Detective Brown the video and some still photos taken from the Waveland Robbery video They also showed Detective Brown a still shot taken from the store surveillance camera about s twenty minutes before the robbery The photo taken before the robbery showed a man wearing a distinctive black sweatshirt with a hooded skull and flames on the front Detective Brown immediately recognized the man wearing the skull and flames hooded sweatshirt as the defendant He also recognized the defendant as the perpetrator wearing the camouflage overalls and balaclava 9 The Slidell detectives obtained a search warrant for the defendant s vehicle Accompanied by the Waveland detectives they found the black skull and flames hooded sweatshirt and a black balaclava like the one worn by one of the perpetrators in the Waveland Robbery The driver s license of co lonjaleic Cagnolatti was defendant also found in the s defendant vehicle At some point Detective Brown began recarding and monitoring the calls the defendant made from jail He noticed that the defendant would call a specific number when he wanted to talk to his mother brother or friends In a jailhouse call to that number the defendant told a person who was believed to be the defendant sbrother to tell Ionjaleid to get all of his things out of her apartment and to throw them away in the apartment s complex dumpster Subsequently Ms Cagnolatti made a recorded statement in which she admitted to being in the car with the defendant and Mr Gilmore the night of the Slidell Robbery and to throwing away several items the defendant kept at her apartment including a pair of camouflage overalls The detectives went to Mr Parks home to ask if he was missing any s of his hunting gear When the detectives showed Mr Parks the photos ofthe Waveland Robbery he recognized the defendant as the man in the skull and flames black hooded sweatshirt and in the camouflage overalls and black balaclava Mr Parks also recognized the long gun as his H long barrel R barrel pistol He said the gun is a replica of an 1870 long cowboy s barrel pistol Mr Parks informed the detectives that he had camouflage overalls and camouflage and black hunting masks like the ones worn in the Waveland Robbery photos When he looked far his similar hunting gear he discovered they were missing Likewise he discovered his H long R barrel 10 pistol and a box of ammunition for the pistol were missing from his locked gun cabinet The efendanYs third recorded statement The defendant made his third recorded statement on February 9 2010 with trial counsel present In this version after he finished work he picked up Ms Cagnolatti then Mr Gilmore The trio ended up in Mississippi to case the joints that Mr Gilmare was considering robbing Essentially the defendant described a plan where Mr Gilmore armed with the gun would go in and rob the store The defendant would act as the getaway driver Both he and Ms Cagnolatti would act as lookouts However they decided not to rob these places and they left Mississippi and drove to Slidell In Slidell the trio ended up at the Thompson Road gas station and convenience store Accarding to the defendant Mr Gilmore felt confident that he could rob it The defendant and Ms Cagnolatti dropped him off as planned As they were pulling away from the gas station Mr Gilmore ran out of the store without robbing it At first they thought it was funny Then Ms Cagnolatti said she wanted to go home Mr Gilmore was still pushing the issue because he needed money According to the defendant he told Mr Gilmore that he would lend him some money and nothing more was said about robbing a store Mr Gilmare asked to be dropped off at a girlfriend house off Robert s Road Most of what follows was consistent with the corresponding post robbery account the defendant gave in his second recorded statement The defendant was adamant that he had no knowledge that Mr Gilmore was planning to rob Grumpy when he left Mr Gilmare at the residence off s Robert Road Once again the defendant maintained he had no knowledge that Mr Gilmore had robbed Grumpy when he later offered him a ride s 11 When he realized Mr Gilmore had robbed Grumpy the defendant said s they argued about Mr Gilmore placing him injeopardy of going to jail if the police stopped them and found the gun and the stolen money in his car Ionjaleic Cagnolatti srecorded statement Ms Cagnolatti gave a different account of the events that occurred on January 7 2010 In her February 10 2010 recorded statement she told the detectives that when they picked up Mr Gilmore there was no talk about taking him to a girlfriend house in the Robert Road area She contirmed s they dropped off Mr Gilmore at the Thompson Road convenience store Although she thought it strange when he came back out of the store without making a purchase she said she had no idea of a plan to rob that store When they left the Thompson Road convenience store Ms Cagnolatti said the defendant drove to a wooded area behind Grumpy sand dropped off Mr Gilmore Before getting out of the defendant car Mr Gilmore told the s defendant to signal him by honking the horn when he returned to pick him up The defendant then drove down a street in the neighborhood behind smade a U at the end of the street and drove back to where Grumpy turn he left Mr Gilmore When the defendant signaled with the horn Mr Gilmore ran out of the wooded area and got in the car Ms Cagnolatti claimed she realized what was going on after Mr Gilmore robbed s Grumpy Ms Cagnolatti said there was no disagreement between the defendant and Mr Gilmore After the robbery they drove to the Walnut Street residence The defendant went in the house and she stayed in the car When the defendant returned they went to a daiquiri shop After that he took her home Ms Cagnolatti claimed she had no knowledge about the plan Mr Gilmore and the defendant had to rob Grumpy However she admitted to s 12 throwing away the camouflage overalls the defendant left in her apartment and that someone claiming to be the defendant brother later called and s asked her to throw away the items As a result of the investigation the defendant Mr Gilmore and Ms Cagnolatti were charged as co of the Slidell Robbery perpetrators Ms Cagnolatti was also charged with accessory after the fact COUNSELED ASSIGNMENT OF ERROR Ineffective Assistance of Counsel On appeal the defendant claims ineffective assistance of counsel A claim of ineffective assistance of counsel is more properly raised by an application for post relief in the district court where a full conviction evidentiary hearing may be conducted Nonetheless where the record discloses evidence needed to decide the issue and that issue is raised by assignment of error on appeal the issue may be addressed in the interest of judicial economy State v Henry 2000 La App lst Cir 5 2250 O1 11 788 So 535 538 writ denied 2001 La 6 818 So 791 2d 2299 02 21 2d The record before us is sufficient to decide this issue Thus in the interest of judicial economy we choose to consider the defendant arguments in his s sole assignment of error See State v Wilkinson 99 La App l st Cir 803 00 18 2 754 So 301 303 writ denied 2000 La 4 790 2d 2336 O1 20 2d So 631 The claim of ineffective assistance of counsel is to be assessed by the part two test of Strickland v Washington 466 U 668 104 S 2052 80 S Ct 2d Ed L674 1984 State v Fuller 454 So 119 125 n9 La 1984 An 2d ineffective assistance of counsel claim has two components a defendant must show that counsel performance was deficient and that the deficiency s prejudiced the defense Wiggins v Smith 539 U 510 521 123 S S Ct 13 2527 2535 156 L 471 2003 Counsel performance is deficient 2d Ed s when it can be shown that counsel made errors so serious that he was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment s Counsel deficient performance will have prejudiced the defendant if he shows the errors were so serious as to deprive him of a fair trial The defendant must make both showings to prove that counsel was so ineffective as to require reversal Strickland 466 U at 687 104 S at S Ct 2064 To carry this burden the defendant must show that there is a reasonable probability that but for counsel unprofessional errors the result s of the proceeding would have been different A reasonable probability is a probability sufficient to undermine confidence in the outcome Strickland 466 U at 694 104 S at 2068 S Ct Other Crimes Evidence Obstruction OfJustice During Ms Cagnolatti stestimony the prosecutor solicited testimony from her that she received a telephone call from someone identifying himself as the defendant sbrother asking her to throw away any items the defendant had left at her home Because Ms Cagnolatti testified that she did not know the defendant brother the defendant argues that the jury could conclude s that the defendant instructed the caller to contact Ms Cagnolatti Therefore the defendant contends Ms Cagnolatti s answer implicated him as a principal to obstruction of justice The defendant urges triai counsel sperformance was deficient during this line of questioning He contends trial counsel should have objected or moved for a mistrial under La Code Crim P art 770 or at the least 2 requested the trial court to issue an admonishment to the jury to disregard this line of questioning Moreover the defendant argues trial counsel made matters worse during cross when counsel followed up and examination 14 asked Ms Cagnolatti isn true you threw the defendant stuff away tit s before you actually got a phone call from his brother The defendant argues this removed all doubt from the jurors minds that the telephone call was actually from the defendant brother The defendant also argues this s line of questioning was unnecessary to establish why Ms Cagnolatti threw the camouflage overalls away because she had already testified that she threw the items away prior to receiving the call Arguably this line of questioning could be construed as soliciting inadmissible other crimes testimony from Ms Cagnolatti However errar by counsel even if professionally unreasonable does not warrant setting aside the judgment of a criminal proceeding ifthe error had no effect on the judgment Strickland 466 S U at Ct 691 104 S at 2066 Thus the defendant must also satisfy the prejudice prong of the Strickland analysis To do this the defendant must show that but for counsel failure to object s to testimony concerning the telephone call Ms Cagnolatti received the result of the proceeding would have been different See Strickland 466 U S at 694 104 S at 2069 Our review of the record befare us reveals that 95 Ct the defendant cannot show he was prejudiced by trial counsel alleged s mistakes At trial Ms Cagnolatti testified that she had known the defendant far about four weeks prior to the Slidell Rabbery he was at her apartment almost every evening and the defendant left several of his things at her apartment She had no doubt that the defendant was the man in the Waveland Robbery photos wearing the camouflage overalls and black mask She also testified that the camouflage overalls the defendant was wearing in the Waveland Robbery photo looked like the ones the defendant left in her apartment that she threw away In addition Ms Cagnolatti was present 15 during the Slidell Robbery and her testimony established the defendant and Mr Gilmore were both involved in the planning and execution of the Slidell Robbery Mr Donald Parks also had no doubt that defendant who lived in his home and was the father of his two grandchildren was the Waveland Robbery perpetrator wearing the camouflage overalls and black mask His testimony also established that he owned the same type of hunting gear the defendant wore in the photos and that his similar hunting gear was missing In addition Mr Parks testimony established that his H long s R barrel pistol was the one shown in the photos of both robberies his pistol was missing from his locked gun cabinet and the defendant had access to the pistol because he lived in his home In light of the amount of evidence produced at trial that linked the defendant to the Waveland and Slidell Robberies we find that the defendant cannot show a reasonable probability that but for counsel alleged unprofessional errors the result of the s proceeding would have been different Thus this argument is without merit Detective Laura Stepro Testimony s In the second argument the defendant contends he received ineffective assistance of counsel because trial counsel failed to object on redirect to certain testimony the prosecutor solicited from Detective Stepro concerning Mr Gilmore statement to the Waveland detectives that the s defendant was his co in the Waveland Robbery perpetrator Other than pointing out that Mr Gilmore did not testify the defendant did not develop this argument That being said for the reasons previously discussed even if trial counsel failure to object to this possible hearsay testimony was s deficient performance we find that the defendant cannot show a reasonable probability that but for counsel failure to object to this testimony the s 16 result of the proceeding would have been different The jury had already learned that the defendant was the second perpetrator in the Waveland Robbery through the testimony of Ms Cagnolatti and Mr Parks Therefore this unobjected to testimony by Detective Stepro was merely cumulative Thus we find defendant second ineffectiveness argument lacks merit See s Strickland 466 U at 694 104 S at 2068 S Ct Other Crimes Evidence Cagnolatti Redirect Testimony s During Ms Cagnolatti testimony on redirect the prosecutor began s to ask Ms Cagnolatti whether the defendant ever made statements to her about hitting a lick Before the prosecutor finished the question trial counsei objected to the question The defendant contends that the objection was proper because the question was intended to solicit improper evidence of the defendant involvement in other criminal activity However rather s than approaching the bench to argue the grounds for the objection in the presence of the jury trial counsel argued Your Honar This is talking about other offenses that we have already had hearings for Trial counsel further stated This is something extraneous The trial court sustained the objection and Ms Cagnolatti did not respond to the question In his third argument the defendant contends trial s counsel performance in the manner in which he argued the objection was deficient He contends counsel sfailure to approach the bench effectively defeated the purpose ofthe objection i e not letting the jury learn of Mr Weiters sprior criminal offenses As a result of this mistake the defendant asserts trial counsel virtually announced to the jury that the defendant had committed other offenses that were being concealed from the jury The instant deficient performance argument implies that hitting a lick only refers to criminal activity However the record before us does not 17 indicate Ms Cagnolatti interpreted the term in such a limited fashion During her testimony Ms Cagnolatti was asked what the term meant She responded that it could mean different things insofar as someone receiving money Ms Cagnolatti provided two examples one involving a fortuitous event and the other involving criminal conduct On the lighter side she explained it could mean that someone happened to go to the casino and won big On the sinister side she said it could mean a person just sold somebody some drugs While she acknowledged the term could mean criminal activity Ms Cagnolatti said It could mean that but not usually Even if the jury could infer from the question and trial counsel s alleged deficient performance that the defendant had engaged in criminal activity based on the record before us we are unable to determine if the question was directed at discussions the defendant may have had with Ms Cagnolatti about the Slidell or Waveland Robberies or some other lick that would have resulted in improper other crimes evidence In this regard the record reveals that trial counsel interrupted the second part of the s prosecutor question that may have shed some light as to what testimony the State was attempting to solicit from Ms Cagnolatti Because the trial court quickly sustained the objection further argument was not presented Even if trial counsePs performance was deficient for the same reasons previously discussed we find the defendant cannot show he was prejudiced by trial counsel salleged mistake in arguing the objection in front of the jury Moreover the record before us reveals that pursuant to its pretrial ruling on the admissibility of the Waveland Robbery evidence the trial court provided a specific jury instruction on the limited purpose for which other crimes evidence could be considered Also our tharough review of the closing arguments presented to the jury reveals that the only 18 other crimes evidence to which the State referred in its closing argument was the Waveland Robbery evidence the admissibility of which the defendant does not challenge on appeal Thus we find defendant third s ineffectiveness argument lacks merit See Strickland 466 U at 694 104 S Ct S at 2068 For the faregoing reasons we find the defendant counseled s assignment of error is without merit The defendant has failed to carry his burden of showing there is a reasonable probability that but for the complained about conduct of counsel the result of the proceeding would have been different See Strickland 466 U at 691 104 S at 2066 S Ct PRO SE ASSIGNMENTS OF ERROR Sufficiencv of the Evidence In his first pro se assignment of error the defendant urges the evidence was insufficient to support his conviction as a principal to armed robbery The defendant argues the State failed to prove beyond a reasonable doubt that he had knowledge that Mr Gilmore was planning to rob s Grumpy He also contends there was insufficient evidence to link him to the weapon Mr Gilmore used during the Slidell Robbery A conviction based on insufficient evidence cannot stand as it violates due process See U Const S amend XIV La Const art I 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 S 319 99 S 2781 2789 61 L 560 1979 Ct 2d Ed See La Code Crim P art 821 State v Ordodi 2006 La 11 946 So 654 660 B 0207 06 29 2d State v 2d Mussall 523 So 1305 09 1308 19 La 1988 The Iackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt In the instant matter the State case is built in part on s in chief circumstantial evidence When analyzing circumstantial evidence La R S 438 15 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis ofinnocence See State v Patorno 2585 2001 La App lst Cir 6822 So 141 144 02 21 2d Louisiana Revised Statutes 14 provides in pertinent part 64 Armed A robbery is the taking of anything of value belonging 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 to The parties to crimes are classified as principals and accessories after the fact La S R 23 14 Principals are all persons concerned in the commission of a crime whether present or absent and whether they directly commit the act constituting the offense aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime La S 24 R 14 The law of principals states that all persons involved in the commission of a crime whether present or absent are equally culpable However the defendant mere presence at the scene is not enough to s concern an individual in the crime A principal may be connected only to those crimes for which he has the requisite mental state State v Hampton 0331 98 La 4 750 So 867 880 cert denied 528 U 1007 120 99 23 2d S Ct S 504 145 L 390 1999 The State may prove a defendant guilty 2d Ed by showing that he served as a principal to the crime by aiding and abetting another Under this theory the defendant need not have actually performed the taking to be found guilty of a robbery State v Smith 513 So 438 2d 45 444 La App 2d Cir 1987 Further a defendant convicted as a 20 principal need not have personally held a weapon to be found guilty of armed robbery State v Dominick 354 So 1316 1320 La 1978 2d Armed robbery is a general intent crime In general intent crimes the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal State v Payne 540 So 2d 520 523 La App lst Cir writ denied 546 So 169 La 1989 24 2d In his pro se brief the defendant contends Ms Cagnolatti testimony s is insufficient to prove he had knowledge of Mr Gilmore pian to rob s s Grumpy The defendant points out that Ms Cagnolatti did not see Mr Gilmore exit the defendant vehicle with a gun or mask and she testified s there was no communication between Mr Gilmore and the defendant about robbing Grumpy s As discussed in the counseled assignment of enor Ms Cagnolatti s testimony established the defendant drove to an area behind Grumpy and s Mr Gilmore got out of the defendant scar Before Mr Gilmore got out of the defendant car Mr Gilmore told the defendant to honk the hom when s the defendant retumed to pick him up The defendant then drove down a street in the neighborhood behind Grumpy smade a U and returned to turn the area where he left Mr Gilmore When the defendant returned Ms Cagnolatti testified that the defendant signaled Mr Gilmore as planned Mr Gilmore ran out of a wooded area and got into the defendant car After s that the defendant drove to the Walnut Street residence and the defendant and Mr Gilmare went inside the residence Ms Cagnolatti testimony contradicts the exculpatory statements the s defendant made to the police in his third recorded statement Ms Cagnolatti testified that Mr Gilmore did not ask the defendant for a ride to a female s house in the neighborhood behind Grumpy The defendant did not get lost s 21 in the neighborhood behind Grumpy after Mr Gilmare exited the s s defendant vehicle The defendant did not have a disagreement with Mr Gilmore after the robbery Ms Cagnolatti stestimony established that the defendant knew in advance that Mr Gilmore was going to rob Grumpy s The defendant actions suggest that not only was he aware that Mr s Gilmore was going to commit the armed robbery but that he and Mr Gilmore had planned this crime in advance The defendant also contends that there was insufficient linking him to the gun Mr Gilmore used in the Slidell evidence Robbery He challenges Mr Parks identification of the gun used in the Slidell and s Waveland Robberies as R barrel being his missing H long pistol The defendant asserts that Mr Parks identified the weapon from surveillance photographs that were grainy at best which cast serious doubt on Mr s Parks identification of the weapon The defendant also contends that Ms s Keith description of the gun as being brownish in color does not match the actual color of Mr Parks missing pistol However the defendant did s not provide the court with a record cite to support this assertion The defendant characterization of Mr Parks identification of the s s pistol used in the Slidell and Waveland Robberies as being suspect due to the grainy quality ofthe surveillance video is not supported by a review of the record Mr Parks identified the pistol in the surveillance photographs as being his missing pistol by the weapon distinct characteristics The recard s also shows that Ms Keith description of the weapon as looking like a s western gun is consistent with Mr Parks detailed description of the gun s and with the addition photographs of the Slidell and Waveland Mr Parks and Ms Cagnolatti s s testimony Robberies In identified the defendant as one of the perpetrators in the Waveland Robbery photographs 22 We further note that at trial the jury heard the defendant third s recorded statement in which he explained to the police that he had no knowledge that Mr Gilmore was going to rob s Grumpy In the third recorded statement the defendant offered an exculpatory reason as to how Mr Gilmore came to be in the defendant vehicle after the Slidell Robbery s It is obvious from the finding of guilt thaY the jury concluded the testimony of Ms Cagnolatti Mr Parks and the Slidell detectives was credible and reliable enough to establish the defendant guilt In finding the defendant s guilty it is clear the jury rejected the explanation the defendant provided to the police in his third recorded statement that he was unaware of and in no way helped Mr Gilmore plan the Slidell Robbery An appellate court will not reweigh the evidence to overtum a fact s finder determination of guilt State v Taylor 97 La App lst Cir 2261 98 25 9721 So 929 932 We are constitutionally precluded from acting 2d as a juror in assessing what weight to give evidence in criminal thirteenth cases State v Mitchell 99 La 10 772 So 78 83 The h 3342 00 17 2d of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when 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 The trier of fact determination of the weight to be given s evidence is not subject to appellate review Taylor 721 So at 932 2d After a thorough review of the record we find the evidence supports the jury verdict We are convinced that viewing the evidence in the light s most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of armed robbery In 23 reviewing the evidence we cannot say that the jury determination was s irrational under the facts and circumstances presented to them See Ordodi 946 So at 662 Furthermore an appellate court errs by substituting its 2d appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overtuming a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 2007 La 1 1 So 417 418 per curiam 2306 09 21 3d This pro se assignment of error lacks merit Other Crimes Evidence In his second pro se assignment of error the defendant challenges the trial court ruling that allowed the State to introduce evidence of the s Waveland Robbery The defendant contends the State failed to show by clear and convincing evidence that he was Mr Gilmore co in s perpetrator the Waveland Robbery He also contends the probative value of the evidence was outweighed by its prejudicial effect Generally evidence of other crimes committed by the defendant is inadmissible due to the substantial risk of grave prejudice to the defendant To admit bther crimes evidence the State must establish that there is an independent and relevant reason for doing so i to show motive e opportunity intent preparation plan knowledge identiry absence of mistake or accident or when it relates to conduct that constitutes an integral part of the act See La Code Evid art 404 The Louisiana Supreme 1 B Court has also held other crimes evidence admissible as proof of other crimes exhibiting almost identical modus operandi ar system committed in close proximity in time and place Evidence of other crimes however is not admissible simply to prove the bad character of the accused Furthermore the other crimes evidence must tend to prove a material fact genuinely at 24 issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect Millien 845 So at 513 2d 14 Any inculpatory evidence is prejudicial to a defendant especially when it is probative to a high degree As used in the balancing test prejudiciaP limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial See Old Chiefv United States 519 U 172 180 117 S 644 650 136 L 574 S Ct 2d Ed 1997 The term unfair prejudice as to a criminal defendant speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged State v Jarrell 2007 La App lst Cir 9 994 1720 08 l2 2d So 620 629 30 The procedure to be used when the State intends to offer evidence of other criminal offenses used to be controlled by State v Prieur 277 So 2d 126 La 1973 Prior to its repeal by 1995 La Acts No 1300 2 La Code Evid art 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence Under Prieur the State was required to give a defendant notice both that evidence of other crimes would be offered against him and upon which exception to the general exclusionary rule the State intended to rely Additionally the State had to prove by clear and convincing evidence that the defendant committed the other crimes Millien 845 So at 514 2d However 1994 La Acts 3d Ex Ses No 51 2 added La Code Evid art 1104 which provides that the burden of proof in pretrial Prieur hearings shall be identical to the burden ofproof required by Federal Rules of Evidence Article IV Rule 404 The burden of proof required by Federal 25 Rules of Evidence Article IV Rule 404 is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime wrong or act The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of La Code Evid art 1103 and the addition of La Code Evid art 1104 However numerous Louisiana appellate courts including this court have held that burden of proof to now be less than clear and convincing Millien 845 So at 514 2d In the instant matter the State met its burden of proving the defendant was a co of the Waveland Robbery As previously discussed at perpetrator trial Mr Parks and Ms Cagnolatti identified the defendant as one of the perpetrators of the Waveland Robbery from the photographs taken from the surveillance video Mr Parks identified the camouflage and black facemasks and the camouflage overalls as his missing hunting gear Ms Cagnolatti testified that she threw away a pair of camouflage overalls that the defendant kept at her apartment She testified that the ones she threw away looked like the ones the defendant was wearing in the photogaphs of the Waveland Robbery Mr Parks and Ms Cagnolatti also testified the defendant was the person in the Waveland Robbery surveillance photograph that was taken shortly before the robbery We also find the other crimes evidence of the Waveland Robbery was not unduly prejudicial to the defendant A review of the record supports the conclusion that the probative value of the other crimes evidence outweighed its prejudicial effect The other crimes evidence was used as proof of the defendant intent in the Slidell Robbery and proof that his s presence and involvement in the Slidell Robbery was not due to mistake or 26 accident Futhermore the trial court gave the jury a limiting instruction regarding the other crimes evidence The jury was instructed as follows Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose The sole purpose for which such evidence may be considered is whether it intends to show That the accused possessed the requisite specific intent to commit a criminal act on a later occasion ar to show such things as motive opportunity preparation plan or absence of mistake or accident Remember the accused is only on trial only for the offenses charged You may not find him guilty of this offense merely because he may have committed another offense In light of the foregoing we find that the trial judge did not err in admitting the other crimes evidence This pro se assignment of error lacks merit SENTENCING ERROR In accordance with La Code Crim P art 920 all appeals are 2 reviewed for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record we have found two sentencing errors See State v Price 2005 2514 La App 1 st Cir 12 952 So 112 123 en banc writ 06 28 2d denied 2007 La 2976 So 1277 0130 08 22 2d The defendant was convicted of armed robbery while using a firearm violations of La R 14 and La R 14 S 64 S 64 3 Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and far not more than ninety years without benefit of parole nine probation or suspension of sentence La R 14 Because a firearm S 64 B was used in the armed robbery La R 14 S 643 Amandates the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole probation or suspension of sentence and this 27 additional sentence shall be served consecutively to the sentence imposed under the provisions of La R 14 S 64 In addition to the sentencing provisions in La R 14 and La R S 64 S 3 64 14 for an adjudicated second offender La R 15 felony S 5291 A provides that a second offender sentence shall be for a determinate felony s term of not less than one the longest term and not mare than twice the half longest term for the underiying offense Thus the minimum term of imprisonment for an adjudicated second offender convicted of armed felony robbery while using a firearm is forty and one years at hard labor nine half pursuant to La R 14 and La R 15 plus an additional S 64 B S 5291 A consecutive period of imprisonment of five years at hard labor pursuant to La R 14 for a total minimum enhanced sentence of fifty S 64 A 3 four and one halfyears at hard labor Although La R 15 does not S 529 G 1 restrict parole eligibiliry the conditions imposed on the sentence are those called for in the referenced statute See State v Bruins 407 So 685 687 2d La 1981 As both La R 14 S 64 Band 14 Arequire the period of 643 imprisonment imposed under these statutes to be served without benefit of parole under Bruins the defendant enhanced sentence for his conviction s of armed robbery while using a firearm is to be served without benefit of parole In this matter the trial court sentenced the defendant to a total imprisonment of forty and one years at hard labor to be served four half without benefit of probation or suspension of sentence We find this sentence is illegally lenient because the sentence imposed forty and four halfyears of imprisonment is less than the statutory minimum sentence one We also fmd this sentence is illegally lenient because the h court failed to order the defendant sentence to be served without benefit of parole s 28 However since the sentence imposed as a result of these sentencing errors is not inherently prejudicial to the defendant and neither the State nor the defendant has raised this sentencing issue on appeal we decline to correct this error 687 See Price 952 So at 123 see also Bruins 407 So at Zd 25 2d Thus for the reasons stated above we affirm the defendant s conviction adjudication as a second habitual offender and sentence felony DECREE For the reasons set forth herein the defendant conviction adjudication as a s felony second habitual offender and sentence are all affirmed CONVICTION ADJUDICATION AS A SECOND FELONY HABITUAL OFFENDER AND SENTENCE AFFIRMED 4 In any event the defendanf s parole restriction should be self under La activated S 1 R 15301 See State v Williams 2000 La ll A 1725 O1 28 800 So 790 799 2d 29
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.
