State Of Louisiana VS Tevin Crockett
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0415 Ir STATE OF LOUISIANA VERSUS TEVIN CROCKETT 7udgment Rendered NOV 1 4 2012 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge Trial Court No 08 0432 09 The Honorable Richard Anderson Judge Presiding Hillar C Moore III Counsel for Appellee District State of Louisiana Attorney Tracey E Barbera Dylan C Alge Assistant District Attorneys Baton Rouge Louisiana Frederick Kroenke Counsel for Defendant Appellant Appellate Project Baton Rouge Louisiana Tevin Crockett Louisiana BEFORE PARRO HUGHES AND WELCH JJ HUGHES J The defendant Tevin Crockett was charged by grand jury indictment with one count of armed robbery Count I a violation of LSA 14 SA R 64 and one count of second degree murder Count II a violation of LSA S R L 30 14 He pled not guilty to both counts Following a jury trial he was found guilty as charged on both counts On Count I he was sentenced to fifty years at hard labor without benefit of probation parole or suspension of sentence On Count II he was sentenced to life imprisonment at hard labor without benefit of probation parole or suspension of sentence The trial court ordered that the sentences would run concurrently with each other The defendant moved for reconsideration of sentence but the motion was denied He now appeals contending the trial court erred in denying a motion to sever the offenses and in sentencing him to life without parole For the following reasons we affirm the convictions on Counts I and II affirm the sentence on Count I vacate the sentence on Count II and remand for resentencing on Count II FACTS Frederick Wright the victim ofCount I testified at trial On April 24 2009 at approximately 4 p Wright stated that he was walking near 24 m the Brandywine Apartments on Darryl Drive in Baton Rouge when he was approached by a man The man asked Wright to come to him and he went to see what he wanted The man asked Wright what he needed Wright told the man I don tneed a thing The man stated Well look I don t got time to play What do you want Wright replied Don want nothing t Rondale Simpson was charged by the same indictment with the same counts However his motion to sever the co was granted and he was not tried with the defendants defendant 2 Pin cooL I straight The man stated What do y need what do you m u need I don have time to p1ay Wright replied I don have time to play t t neither The rrian fhen staYsd Well give e y money Wright saw our the man had a gun so he ave the mkn m from his pocket Tlhereafter a ney second rr grabbed Wright fr beh pulled him down to the ground an r nd and started hitting h The first gnan a beating W with a gun m egan sa riglht A third man then pulled 9Vright wallet out of his pants and ran away with s the wallet The robbers took approximately 240 from Wright The first man then threw right shves into the grass and ordered s him to take off his clothes Wright refused to take off his clothes and the first man tried to cock his gur and tried to get it to go The weapon did not fire and the man told Wright to leave Wright retrieved his shoes and ran until he saw a police offacer Before Wright could finish raporting the robbezy to tkie po officer the of rec a call af an incident at ice cer ived Brandywine Wright testified the robbers looked like kids He stated that the tirst man was wearing a white shirt and blua jean Wright indica the second ed ma ivas wearing a black or blue hirt and a baseball cap Wright colored stated that the third man was wearing a whi shirt and khaki pants Wright e selected the defendant photograph from a six photagraphic line s person up as the second man who had wom the black or blue shirt and the coiored baseball cap Additionally he identified Lhe defendant in court as the second man Kelan Bridgewater and his roQmmate were moving out of the Brandywine Apartments at the time Wright was robbed Bxi saw dgewater three men on top of Wright taking his wallet and things holding h m down punching him He indicated two of the robbers were wearing white 3 shirts and the third was wearing a black shirt and a black cap After t Wright ran off the robbers walked in the direction of Bridgewater s apartment Thereafter Bridgewater saw a blue pickup truck enter the apartment complex One of the robbers talked to the driver of the pickup truck and the other robbers started to wa off k The first rcalled the other two obber robbers back stating Say bro go get the pistol Go get the pistol One of the robbers wearing a white topened the passenger door of the truck shirt The robber wearing the black tbegan arguing with the driver and then skirt pulled out a pistol and shouted Give it up give it up You not going to give it up The driver of the truck put the vehicle in reverse to get out of there but the robber on the passenger side slap the truck into neutral ped and the engine revved really loud The robber in the black t then shirt stated You still not going to give it up He then shot the driver Bridgewater testified the same exact three people robbed Wright and shot the driver of the truck He stated the crimes were a series of events back to back s Bridgewater roommate Warren Lands also testified at trial Lands verified the testimony of Bridgewater that they watched from the second floor balcony outside their apartment the three assailants two of whom were wearing white shirts and one was wearing a blue or black shirt and a cap rob the first victim Wright The assailant with the blue or black shirt was identified as the one who had a gun The three assailants then approached the area where Lands and Bridgewater were standing and Lands who had armed himself with a shotgun told the males Y got to all get from around here with that The three assailants walked off and the assailant who was wearing a white shirt got into the second victim truck s 4 the white assailardt thexa c c zor on of his cohorts to br shirted 11ad ut rtthe gun The blue or black ssailant athe truck and elled at hirtedi s ached pr the victim to gj it up he th hot Yhe vicxarri e en Tti drivex of the ruck a vieizna af c AI vvas lat i unt ridentified as d wa Theodose Ed apige red ua iata F K ro Lh left s shot z u ou de of his che whipi lacerated h a and live rea r TQINDER OF OFFENSES In his first assignxrient fenror lie deferAdant asserts that the trial cowrt erred enying d his motinn to sevez the oifenses because th arc t y se different places involved different victirr did not arise out of the sazne s transaction ar occurrence and did not contain th same element5 of proof or t inter Two or more offenses may be charged in the same indictm or nt information in a separate count for each qffense if the vffenses charged whether feloriies or misdem axe f tlae s t similar vh or aAe rs ea mr r ract sed b on the ne s act a trazisxct3on or r r a tv cnore cts or traxisactions conrtected toget or oa p c a cor ehems csx plan er ating t st erCs f on n provided that td offense j iz be tYiabl b the same mode of trial e ineci usti Part 493 If zt appears ihat Cr C A L defendant or tkie Staie i rejucixc d by a joinder f offenses in an indic c bill of informa r b such t tmen r 3n i joinder for trial together ihe i tnay order separ triais granr a severarace ouz te of offenses or provlde vvhatever other relief justi requires LSA e Part Cr C 495 L In r on a motion or s the trial court si consider a ling ance ver ould variety of factors in determi whether preju rnay resezlt from th ming ce l joinder e the jury would be confuseci by the variaus counts whether hether the jury w be able to segregate the va charges r the evidence azid ious d S whether the defendant could be conFounded in presenting his various defenses whether the crimes charged would be used by the jury to infer a criminal disposition and whether cons the nature of the offenses the charging dering of several crimes would make the jury hostil A severance need not be e granted if the prejudice can effectively be avoided by other safeguards In many instances the trial judge can mitigate any prejudice resulting from joinder of offenses by providing clear instructions to the jury The State can fiu curtail any prejudice with an arderly presentation of evidence State v Allen 95 La App 1 Cir 6i28 b77 So 709 713 writ denied 97 1515 96 2d 0025 La 10 7Q1 So 192 97 3 2d A motion far severance is addressed to the sound discretion of the trial court and its ruling should not be disturbed on appeal absent a showing of an abuse of discretion A defendant in any case bears a heavy burden of proof when alleging prejudicial joinder of offenses as gxounds for a motion to sever Factual rather than conclusory allegations are required Evidence of a crime other than the one charged which may not for some reaso be admissible under Prieur in a separate trial of that charge does not pr vent the joinder and single trial of the charge of multiple crimes if the joinde of the crimes is otherwise permissible State v Allen 677 So at 713 2d Prior to trial the defendant filed a motion for severanc of the offenses arguing a joint trial of the offenses would confuse the jury ecause it would not be able to segregate the evidence of each count He als claimed a joint trial would confound the presentation of defenses Additio ally he argued that the evidence of each offense would be inadmissible in a of the other al He also claimed the charges did not arise out of the sam 2 State v Prieur 277 So 126 La 1973 2d 6 transaction or occurrence and ifthe counts were tried together the jury would necessarily infer a criminal disposition on hfls part The State argued that Counts I and II were part of a spree and occurred within hour of each other The crime one State further argued that the investigations of Counts I and II overlapped Additiaxially the State argu the off w easidy distinguishable l enses re involved two different victims and their joi would not confuse the jury ider Following a hearing the trial court denied the motion to sever the offenses and the defendant objected to the trial court ruling s At the hearing on the motion the State presented testimony from Baton Rouge Police Department Officer Larry Maples Officer Maples investigated the armed robbery of Frederick Wright and the homicide of Theodore Lan g e Both offenses occurred on April 24 2009 Wright flagged down a police officer to report the armed robbery at 4 p Thereafter at 4 p 24 m 36 m officers were dispatched in regard to the homicide Both offenses occurred in the same location the Brandywine Apartment complex at 10950 Darryl Drive in Baton Rouge Officer Maples testified i5 would only take 30 to 45 seconds to walk from the location flf the armed robbery to the location where Lange and his vehicle were found Additionally eyewitnesses at the scene Bridgewater and Lands testified that they saw the same three people commit both offenses Wright identified the defendant as the assailant who had worn the blue or black shirt and who had a gun during the attack the other two assailants vvore white shirts Bridgewater and Lands testified that the assailant who had worn the blue or black shirt was one of the individuals involved in the homicide of Lange A gun was used to rob Wright and Lange died as a result of a gunshot wound Officer Maples also indicated that Rondale Simpson who was also indicted on Counts I and II provided information concerning both offenses 7 here was no abus v c I nYn tic ci i t ial rr of the rnotiori 4 s r ver he r d ueiu oftenses Joir Uf Co Far 33 Cr C A L an flca a sir ia3c vaas proper under 1 ictanent The rif u Y p acts or trar nses ex as ri d sacticns dta coristyi iarts f riane 7ree ar ti rby connect efk ror ag z r nable the sarre nidr qf trial i a compR t t i e ci s elve uxors t cf a r hozn must eozicur to c nder a rd r v ee 4A s st x I y 179 A I P Cr C SA art 78 LSA 14 LSa 14 State v Brown 504 S Bj S Bj R 64 R tiQ1 d1 30 So 7 1029 La p 1 C o wa den S07 So 2 I1987 o it d 2d 25 a rar urth y prejudice resuitin frc j fthe uffenses was pnitigatedi by ni ind x the ordexly pzesentation of e by the Seate and b3 the cou provid tY t n re jury with separate verdict funris nd sep iesponsive verc aYe c icts ksi nment Iassi oferrqr iv uan itlivuY rit TI ITI I ONS l N yE L ENCE T In his secorad assi e erre t zfendan c tiiat h t e s nx i ae ds nteA s nce ent of life aithaut paro tn o FY a catid lViil ve t a nstiztational z er x labapn 4 5 13 i 24s fl E l k3e oes t s c 0C 2d ot chthe sentenc nzt ra A e ilerz d zt s Ixi Nliller v Alabam t u urt held tk rr1 E e re ne at o l t t drravr s encing raxe mei farb a se scl qhati mandates l xn pr e son without j ilit possi of enile r ders le parc far iu ff LToS at 2 1 i S at 4fi9 VTiller does not howet estaiaiish a prqhi agai Iafe er ition sd inapa wi possibil parole ohorrucide offenciers ri hout tyof a enile every c ut ra r a hentene e to consider th offei ase er q l ire ing ur z c s er c uth yc and attendant chara as miti circtaar be4 isrtics te atin st re efi ri nto id pos a zr tkie arsk os penalty for juv AVIilier i sY bie lec n lhP jury chazge was not macie p of the recerci d 8 S U 132 S at 7 State v Graham 2011 La Ct C9 226f at In Mille th Supreme Court further stated e 3d S 12 10 A State is not required to eventual freedom but guarantee must provide some meani opportunity to obtain release igful based on demonstrated maturity and rehabilitation Graham 176 v S U 130 S 2Q11 2030 Ct 1 201 i3y making youth and all that Florida 2d Ed L 825 accompanies it irrelevant td imposztion of that harshast prison sentence such a scherne poses tQO great a risk of disproportionate punishment Because that holding is sufficient to decide these cases we do not consider the alternative argument that the Eighth Amendment requires a categorical bar on life without parole for ju or at least for those l4 and eniles younger But given all we Thave said in Roper Graham and this decision abou childrien diminished culpability and s heightened capacity for chanige we think appropriate occasions for sentencing juveniles to tY harshest possible penalty will be is uncommon That is especially so because of the great difficulty we noted in Roper and Gra of distinguishing at this early am age between the juvenil offender whose crime reflects unfortunate yei transient it and the rare juvenile maturity offender whose crime refleclts irreparable corruption Roper v Simmons 543 U 551 573 125 S 1183 1197 161 S Cf 2d Ed L 2005 1Graham v Florida U at S 130 Ct S at 2026 Althougli we do not foreclose a sentencer 27 s ability to make that judgme in homicide cases we require it at to talce into account how children are different and how those differences counsel against irrevocabiy sentencing them to a lifetime in prison Miller v Alabama enumerated the as pertinent S U following 132 S at 2469 The Supreme Court Ct individu circumstances for consideration chronological at age and its by of a juvenile defendant senLencing court consideration of his k hallma features among them immaturity impetuosity and failure to appreciaite risks and consequences the family and home environment that surrounds him and from which he cannot usually extricate himself no matter how l or dysfunctional the circumstances rutal of the offense including the bf his participation in the conduct and the extent way familial and peer pressures miay have affected him whether he might I have been charged and conviq of a lesser offense if not for ted 9 a t a incompetencies assoGiatied wi apag d ti rs inability Yo de e l t aa s l wbth ialice af c prc 6rzicflu cers r r s i pvza a pi ag or his tl nez re incapacit to assisi his ou a axa e a7ss of ehar aleys t ility t irit tion e Zill o aice th ast t eti ut e w cir su rt Alabarna L at 132 S 7 4ki Ci 3 Yr the instan case c a ks r a pc e mc ror i axir st d xion t acquittal uncl I S and t d of 41z r SF acx i 1A C l4wing f naal r nnotiion th defenciant wa cezei cielays throu the fblYowing d v ncir h colioquy THE COUIZT Is he i tr waive any s delay g znitencing DETENSE COL A vv azr senience tocEay NSEI ou a it TH D Ia FENDt1NT fetid ntnods hea i ECOi1NSEL J4 iela C Honar DEFEN aive s ur Tla trial e t1 sent t1ir deferidai ior he ori fs d yrt en nced ie cor gree d mrzrdea k aife i t hard lab w 1 F prQ nprzsonment ut Prfa h er f ation aarcate r u x i tu did i orde aentealce nfser si a p e ie ai urY ot rr aLi esti in ra uth C S ar 7 r c n ise er e tka yu to ir th cd att t w of th o h tance iirig LUm n on ssi rrd r e flen s zy defendaxat tAist uf delinc r ehis f cy uer zty na a mi ituarun a Ad background cc nd ena staius educatic az p riqmic nt piQVm ri sl aso abits ti as w tiave ieen accomplisYied by a iri apd aresentien vesxigatY ta See P Cr LSP art IQn il f i 751A 1or as there arry zta c th uirement f re s iorth in Mflller e Alabama fjuvenile fferidexs r e dant T dPfe in xh cas was borxi ra w 24 1493 icoznrriiaced s the rirn c in Counx F Gcond degr inurder vn Aprii 24 ta eu haz e f5 as v urfuPr che age of ezghteerz c iha dacc f fiiic tti x ore kaexe we tri7e s t dan z riterice def s af ligc am at iiard rabor ri ar ai ent tisotarr au2 tk le I Count II violates Miller v Alabama and this assignment of error has merit Accordingly we hereby vacate the sentence on Count II and remand for resentencing on that count in accordance wiih Miller v Alabama and State v Graham CONVICTIONS ON COUNTS I AND II AFFIRMED SENTENCE ON COUNT I AFFIRMED SENTENCE ON COUNT II VACATED REMANDED FOR RESEN ON COUNT II ENCING I WITH INSTRUCTIONS 11
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