State Of Louisiana VS Larenzo Lomax
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 1390 STATE OF LOUISIANA VERSUS LARENZO LOMAX Judgment Rendered MaR 2 2 20 3 k On Appeal from the 22nd Judicial District Court In and for the Parish of St Tammany 1 r Z State of Louisiana Trial Court No 515218 Honorable Allison H Penzato Judge Presiding Walter P Reed Attorneys for Plaintiff Appellee District State of Louisiana Attorney Covington LA Kathryn W Landry Baton Rouge LA Holli Herrle Castillo Marrero LA Attorney for Defendant Appellant Larenzo Lomax BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM J7 J HIGGINBOTHAM J The defendant Larenzo Lomax was charged by felony bill of information with two counts of armed robbery in violation of La R 14 S 64 He pled not guilty and following a jury trial was found guilty as charged The defendant filed Motion a to Suppress the Confession which the district court denied The defendant also filed a motion for post judgment of acquittal and a motion verdict for new trial both of which the district court denied He was sentenced to sixty years at hard labor without the benefit of probation parole or suspension of sentence on both counts to run concurrently The defendant now appeals alleging two assignments of error For the following reasons we affirm the defendant s convictions and sentences FACTS On October 31 2011 the defendant came running into the Whitney Bank on Marigny and Florida Streets in Mandeville Louisiana He was dressed in black from head to toe and was also wearing a mask and red gloves The defendant had a Mardi Gras bag and demanded that the bank tellers put money into the bag He pointed a gun towards the tellers cocked it and told them to hurry up and that he was not playing around After the first teller filled up his bag he told her to hand the bag to the teller behind her and said Now have her fill the bag That teller froze so the bank manager pushed her out of the way and filled the bag with money and a dye pack The money from the two tellers drawers totaled approximately 15 After the defendant left the manager ran and locked 00 000 the door The bank employees could not identify the defendant as the robber but testified that the person who robbed the bank sounded like a black male was skinny and approximately 5 8 7 1 According to the testimony from trial the dye pack activates once it is removed from the safety plate inside the bank teller drawer A transmitter inside of the bank activates the system Once s the signal is broken by the person going outside of a certain range of the bank the pack deploys and releases red smoke teaz gas and red dye Almost immediately thereafter Earsley Hart Jr was driving down Florida Street when he saw a black man run across the street from Whitney Bank Hart saw orangeish smoke comirrg out of a bag the man was carrying According to Hart the man he saw running was approximately 5 10 and had a medium build Hart testitied that the man was wearing dark clothing and had a multi or color Mardi Gras color bag Kathleen Jatho worked at a daycare near the Whitney Bank On the day of the robbery she was sitting in her car in the daycare parking lot when she saw a man running near her car The man was wearing dark pants and a white T shirt underneath an unbuttoned blue and white checkered shirt He appeared to be around 5 and was carrying something that looked like a sweater Jatho testified 9 that the man trailed the side of a building and the next thing she saw was a dark colored car leaving from that building Jatho did not notice anyone else in the car At trial she identified the defendant as the person she saw running The next day the defendant went into Winn Dixie and attempted to send money through Western Union Katrina Holden the in coordinator for Winn store Dixie noticed that the money the defendant handed her to complete the transaction had a pink ar red stain on it and that the palms of the defendant shands were also stained a pink or red olor She reported this to the store director who called 9ll Holden stalled the defendant for as long as she could then completed the transaction She saw the defendant head toward the exit door and the next thing she saw was an officer entering the store with a rifle The defendant was arrested by the St Tammany Parish Sheriff Office s Police obtained a search warrant for the defendant shouse where they found red and black gloves bullets a bathtub stained red and money stained red The police found 1in the attic of the defendant house and 12 in the master 00 242 s 00 879 bedroom and closet A majority of the bills were stained with pinkish dye red 3 ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues that the district court erred in failing to suppress his statements Specifically the defendant contends that he made several contradictory and inculpatory statements during the investigation of this case under the influence of inducements or promises as well as veiled threats On the trial of a motion to suppress the state has the burden of proving admissibiliry of a purported confession or statement by the defendant La Code Crim P art 703D In addition to showing that the Miranda requirements were met the state must affirmatively show that the statement or confession was free and voluntary and not made under the influence of fear duress intimidation menaces threats inducements or promises in order to introduce into evidence a s defendant statement or confession La R 15 The state must specifically S 451 rebut a defendant specific allegations of police misconduct in eliciting a s confession State v Thomas 461 So 1253 1256 La App lst Cir 1984 writ 2d denied 464 So 1375 La 1985 In determining whether the ruling on the 2d s defendant motion to suppress was correct we are not limited to the evidence adduced at the hearing on the motion We may consider all pertinent evidence given at the trial of the ease State v Chopin 372 So 1222 1223 n La 2d 2 1979 The defendant contends that he was promised leniency if he cooperated with the officers that he lacked sleep at the time he gave his statements and that he was under duress when questioned about the possible involvement of his fiancée The defendant did not testify at the hearing on the motion to suppress He testified at trial that he was tired and scared during his interviews and that he was trying to protect his fiancée even though he denied any involvement on her part He also 2 The contents of these statements aze more fully described in the discussion of the sufficiency of the evidence in the second assignment of error 4 testified that the officers conducting the interviews were befriending him and were not mean to him but denied contacting detectives on November 3 2011 for further discussion At the hearing on the motion to suppress the officers involved in the arrest and questioning of the defendant testified The testimony of each officer directly contradicts the defendant testimony that he was tired scared or under duress s during the interviews Deputy Stephen Paretti with the St Tammany Parish Sheriffs Office testified that he was dispatched to the Winn Dixie on November 1 2011 where he arrested the defendant He advised the defendant of his Miranda rights and did not threaten or coerce the defendant in any way Deputy Paretti also testified that the defendant never asked for an attorney or indicated that he wanted to stop talking Detective Eddie Vanison with the Mandeville City Police Department testified that he advised the defendant on November 1 2011 that he was still subject to Miranda and also gave the defendant a Miranda warning himself According to Detective Vanison the defendant never asked for a lawyer or indicated that he wanted to stop talking The defendant was given food drinks and cigarettes The defendant was told that he would be better off if he cooperated but he was not threatened or coerced in any way defendant contacted Detective Vanison wanting On November 3 2011 the to talk further Detectives Vanison and Joseph Downs picked up the defendant provided him with food and again advised him of his Miranda rights On November 15 2011 the defendant was interviewed for a third time and again given his Miranda rights The defendant made phone calls that day that were recarded While the defendant was on the phone the detectives were in and out of the room Detective Joseph Downs with the Mandeville City Police Department was involved in the November 1 November 3 and November 15 interviews with the defendant He testified that the defendant was advised of his Miranda rights and 5 never asked for an attorney or indicated that he wanted to stop talking Detective Downs also stated that the defendant was not abused threatened or coerced in any way The defendant was provided with food and drink Detective Downs testified that he told the defendant that if he cooperated the detective would let people know but did not discuss any court leniency or reduced sentence with the defendant The district court gave reasons for denying the motion to suppress In its reasons the court stated that the defendant was advised of his Miranda rights on each of the occasions that he was interviewed and executed waivers each day It also pointed out that the testimony presented at the hearing on the motion to suppress established that the defendant was not threatened coerced or offered any promises or inducements in exchange for his statements The defendant also was not deprived of nourishment in any respect The court stated that the defendant had no expectation of privacy in the phone calls that he made on November 15 2011 because he was in a room with law enforcement officers who were nearby and able to hear his conversations The admissibilitY of a c onf ession is in the first instance a q uestion for the district court its conclusions on the credibility and weight ofthe tesrimony relaring to the voluntary nature of the confession will not be overturned unless they are not supported by the evidence State v Sanford 569 So 147 150 La App 1 st 2d Cir 1990 writ denied 623 2d So 1299 La 1993 The district court must consider the totality of the circumstances in deciding whether a confession is admissible Testimony of the interviewing officer alone may be sufficient to prove a defendant sstatements were freely and voluntarily given State v Maten 2004 1718 La App lst Cir 3899 So 7ll 721 writ denied 2005 La OS 24 2d 1570 06 27 1 922 2d So 544 Further when a district court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court discretion i unless such ruling is s e 6 not supported by the evidence See State v Green 94 La 5 655 0887 95 22 2d So 272 280 As a general ruie this court reviews district court rulings 81 under a deferential standard with regard to factual and other trial determinations while legal findings are subject to a de novo standard of review State v Hunt 1589 2009 La 12 25 So 746 751 1109 3d After a careful review of zhe record including the recorded statements we do not fmd that the district court abused its discretion in denying the motion to suppress The testimony the recorded statements and the waiver forms clearly establish that the defendant was advised of his Miranda rights and that he executed defendant a waiver of those knowingly and rights Further the evidence indicates that the intentionally waived his rights The detectives testimony at the hearing which the district court found credible showed that the defendant appeared to understand his rights and demonstrated a desire to speak to the police and explain his version of the events The district court also found credible the detectives testimony that they did not coerce the defendant into admitting to robbing the bank or changing his story The detecti testified that es they told the defendant he wonld be better oif if he cooperated but did not promise the defendant that his cooperation would lead to court leniency or a lesser sentence Statements by the police to a defendant that he would be better off ifhe cooperated are not promises or inducements designed to extract a confession State v Lavalais 95 La 11 685 So 1048 1053 cert denied 522 0320 96 25 2d S U 825 118 S 85 139 L 42 1997 The test for voluntariness of a Ct Zd Ed confession requires a review of the totality of the circumstances under which the statement was given Maten 899 So at 721 We conclude as did the district 2d court that under a totality of the circumstances the defendant confessions were s not involuntary Therefore the district court did not err or abuse its discretion in denying the motion to suppress This assignment of error is without merit 7 ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues that there was insufficient evidence to support his convictions of armed robbery He contends that his own contradictory statements were the only direct evidence of his involvement in the robbery of the Whitney Bank tellers He also contends that the evidence only proved that he was in possession af stolen money The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 99 S 2781 61 L 560 1979 see also La Code Crim P S Ct 2d Ed art 821 B When analyzing circumstantial evidence La R 15 provides S 438 that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 2002 La App lst 1492 Cir 2 845 Sa2d 416 420 This is noY a separate test to be applied when 03 14 circumstantial evidence forms the basis of a conviction all evidence both direct and circumstantial must be sufficient to satisfy a rati juror that the defendant nal is guilty beyond a reasonable doubt State v Ortiz 96 La 10 701 1609 97 21 2d So 922 930 cert denied 524 U 943 118 S 2352 141 L 722 S Ct 2d Ed 1998 Where the key issue raised by the defense is the defendant identity as the s perpetrator rather than whether the crime was committed the state is required to negate any reasonable probability of misidentification State v Johnson 99 2114 La App lst Cir 12 800 So 886 888 writ denied 2001 La OOj 18 2d 0197 1 0 7 12 802 So 641 Posirive identification by only one witness is sufficient 2d to support a conviction State v Davis 2001 La App lst Cir 6 3033 2 2ll 822 So 161 163 Moreover it is the jury who weighs the respective credibility 2d of the witnesses and this court generally will not 8 guess second those determinations See State v Hughes 2005 La ll 943 So 1047 0992 06 29 2d 1051 Louisiana Revised Statute 14 provides that a robbery is the A 64 rmed taking of anything of value belonging to 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 The defendant does not dispute the fact that two counts of anned robbery were committed at Whitney Bank on October 31 2011 or that he was in possession of stolen money thereafter involvement Rather he challenges the nature of his Throughout the recorded interviews the police conducted with the defendant he gave many different accounts of what happened on October 31 2011 During his first interview the defendant stated that he was not in Louisiana at the time of the robberies He then stated that two of his friends were responsible for the robberies and he was at his home while the robberies took place He later told the detectives that he actually did know about the robberies was going to get a portion of the money and took part in cleaning the money However the defendant still denied taking part in the actual robberies He stated that he grew up with the two friends who were involved and that they had stayed at his mother s home with him in California But later on in the interview the defendant stated that he did not know their last names and that one of them was actually from Detroit The defendant also stated that when he saw the police officers at Winn Dixie he contacted his two friends to notify them but he previously told the police that he was on the phone with his fiancée at that time even though she had no knowledge of what was going on In an interview on November 3 2011 the defendant changed his story again This time he stated that he actually entered the bank The defendant told the police that he discarded the clothes that were involved in the robberies and only kept the gloves In his last interview on November 15 2011 the defendant 9 indicated that he was only the driver and one or both of his two friends entered the bank He also made phone calls that day which were recorded In one call to his mother the defendant indicated that the officers wanted him to turn in the others involved in the robberies and wanted him to admit to everything At trial the defendant testified that on the day of the robberies he went to get a daiquiri and saw a man running across the street with a bag in his hand He saw the man approach a parked car and throw out the bag The defendant looked into the bag took it and returned to his home with it He tried to clean the money and iron it out He then went to Winn Dixie and attempted to wire some of the money to his fiancée who was in California at the time The trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover where there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of 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 evidence is not subject to s appellate review An appellate court will not reweigh the evidence to overturn a fact finder determination of guilt s 98 25 9 721 Sa2d 929 932 State v Taylor 97 La App lst Cir 2261 An appellate court is constitutionally precluded from acting as ajuror in assessing what weight to give evidence in thirteenth criminal cases that determination rests solely on the sound discrerion of the trier of fact State v Azema 633 So 723 727 La App lst Cir 1993 writ denied 2d 0141 94 La 4 637 So 460 94 29 2d We note that a finding of purposeful misrepresentation as in the case of material misrepresentation of facts by the defendant reasonably raises the inference of a mind guilty Lying has been recognized as indicative of an awareness of wrongdoing State v Captville 448 So 676 680 n 4 1984 2d La The facts in this case established acts of material misrepresentation by the 10 defendant The defendant lied about his involvement in the robberies and made several inconsistent statements Based on our review of the evidence we conclude that the jury reasonably rejected the defendant shypothesis of innocence namely that he only found the stolen money and did not actually rob the bank tellers See State v Ordodi 2006 0207 La 11 946 So 654 662 An appellate court errs by substituting 06 29 2d its appreciation of the evidence and credibility ofwitness for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the trier of fact 2306 09 21 Calloway 2007 La 1 1 So3d 417 418 See State v per curiam After a tharough review of the record we conclude that the evidence supports the convictions We are convinced that viewing the evidence in the light 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 two counts of anned robbery This assignment of errar is without merit For the foregoing reasons defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 11
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