State Of Louisiana VS Kenneth Truman Roberts, Jr.
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 1555 STATE OF LOUISIAI IA VERSUS KENNETH TRUMAN ROBERTS JR Judgment Rendered UI qpR 2 6 2013 x Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Case No 27124 The Honorable Zorraine M Waguespack Judge Presiding x Scott M Perrilloux Counsel for Plaintiff Appellee District State of Louisiana Attorney Patricia Parker Amos Assistant District Attorney Amite Louisiana Counsel for Defendant Appellant Powell Miller New Orleans Louisiana Kenneth Truman Roberts Jr F k C a Jf A IC BEFORE GUIDRY CRAIN AND THERIOT JJ o G r THERIOT J The defendant Kenneth Truman Roberts Jr was charged by bill of information with one count of simple kidnapping ofa person sixty years five of age or older violations of La R 14 and La R 14 S 45 S 50 2and pled not guilry Following a jury trial he was found guilty as charged He was sentenced to five years at hard labor and to an additional three years at hard labor because the victim was sixty years of age or older five He now appeals challenging the trial court denial of his motion for continuance s and the court questioning of a juror outside of his presence s For the following reasons we affirm the conviction amend the sentence affirm the sentence as amended and remand with instructions FACTS On August 5 2011 the victim Delores Roberts signed a written statemenY at her home indicating her son the defendant had broken into her bedroom and threatened to beat the victim brains in with her Virgin s Mary statue if she did not get out of bed and take 80 out of the ATM The statement indicated the defendant told the victim not to make a sound or he would hurt the victim The statement set forth the victim was terrified of the defendant and afraid the defendant realiy will kill the victim The statement also indicated the defendant had previously threatened to cut the victim like a pig and throw her in a ditch if she did not give him money At trial the victim testified at approximately 10 p on the night 00 m of the incident the defendant knocked on her door woke her up and told her he needed money He was upset because somebody was after him and was going to shoot him The victim stated the defendant did not have anything in his hand did not threaten her and did not physically harm her She claimed he drove her to the bank because she did not see well enough to 2 drive at night and she gave him 80 which he promised to repay The victim indicated she signed the earlier statement about the incident and went to the Denham Springs Police Department because she was upset that the defendant had woken her up in the middle of the night She denied that the defendant kidnapped her Denham Springs Police Department Officer Kevin Prejean also testified at triaL He indicated on August 5 20ll the victim called in a complaint about a robbery and came to the police department at 724 a m Officer Prejean stated the victim was afraid of her son and had snuck out of the house According to Officer Prejean the victim alleged she had woken up to find the defendant holding picture a frame above her head He threatened to smash her skull if she didn tbring him to the ATM to get eighty dollars Officer Prejean testified the victim had also alleged the defendant threatened to hit her with a statuette of the Virgin Mary Officer Prejean indicated the victim stated she rode with the defendant to the ATM and gave him 80 because she was scared of him Denham Springs Police Officers subsequently went to the victim s residence to contact the defendant He did not respond to knocks on the door or on the windows Thereafter the police entered the residence using the victim key s They found the defendant hiding in a bedroom closet They anested him for aggravated kidnapping and simple robbery and advised him of his Miranda rights DENIAL OF CONTINUANCE In assignment of error number 1 the defendant argues the trial court abused its discretion in refusing to continue the trial after the State notified him it intended to offer fifteen hours of his phone calls Mirandu v Arizonu 384 U 436 86 S 1602 16 L 694 1966 S Ct 2d Ed 3 At a pretrial conference on April 9 2012 defense counsel put on the record that the State had informed her that morning that the State was in possession ofphone records from the jail to the victim as well as a CD of the records The defense moved for a continuance alleging there was also a possible witness that was there and that could testify on behalf of the defendant and who had not been subpoenaed by prior defense counsel The State indicated it was not in possession of any transcripts but would let the defense listen to the calls The court ruled Well you all can listen to them together today then And we are going to start the trial at 9 dclock in the 00 morning On April 10 2012 the day of trial the defense filed a written motion for a continuance alleging The State produced phone logs accompanied with the recorded conversations between defendant and the victim on late Monday April 9 2012 from December 2011 properly documents afforded and The phone conversations range April 2012 Defense has not been an opportunity to fully recordings conversations may include exculpatory evidence examine the It is believed that the recorded statements and or Further no transcripts of the recordings were provided The trial court denied the motion Additionally at the hearing on post motions the State set forth trial As far as the State only received these tapes late Thursday the Thursday afternoon before trial In order to obtain these tapes we have to have a valid phone number to be able to compare it for the jail records I did not receive that s until 230 or 3 dclock that Thursday Quickly was able to call the jail and get them to pull those records That was Easter weekend As the court well know court was closed all that s weekend Monday I made the defense aware of that Court ordered me to provide a copy to the Defense counsel In fact that afternoon the Monday afternoon after we finished with court 1 played the specific conversations that would be played at trial to Defense counsel going over which ones Furthermore Judge these are the Defendant own s statements So he was aware that he had been making these 4 phone call to the victim t his own voice He knew he s s was being recorded And the conversation the jail let sic s them know these phone conversations are being recorded Furthermore Judge prior Defense counsel was made aware that the State was looking and investigating into the possibility that this defendant was intimidating the victim in this case and that we were going to be trying to attempt to pull these jail records The problem was that we didn haue the t correct phone numbers The ones that we pulled there were no recordings Until we got the home phone number ofthe victim which is where all these recordings came from The granting or denial of a motion for continuance rests within the sound discretion of the trial courC and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion State v Albert 96 1991 La App lst Cir 6697 So 1355 1360 97 20 2d There was no clear abuse of discretion in the denial of the motion for continuance The trial court instructed the State to provide the defense with the opportunity to listen to the recordings and the State played the specific conversations that would be played at trial to Defense counsel At trial the defense used the recordings to cross the victim examine This assignment of error is without merit IMPROPER QUESTIONING OF JUROR In assignment of error number 2 the defendant argues the trial court abused its discretion by questioning a juror without defense counsel present and by failing to replace the juror due to partiality The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial whatever the cause of his partiality La Code Crim P art 797 A challenge for cause should be granted even 2 when a prospective juror declares his ability to remain impartial if the prospective juror responses as a whole reveal facts from which bias s prejudice or inability to render judgment according to the law reasonably may 5 be inferred However the trial court is vested with broad discretion in ruling on a challenge for cause its ruling will not be disturbed on appeal absent a showing of an abuse of discretion State v Henderson 99 La App 1 st Cir 6 762 So 747 754 writ denied 00 La 6 793 00 23 2d 2223 O1 15 2d So 1235 A trial judge refusal to excuse a prospective juror for cause is not an s abuse of his discretion notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense when subsequently on further inquiry ar instruction he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence State v Taylor 03 1834 La 58 So 58 63 04 25 5 2d During a recess at trial the bailiff brought juror Ronnie Shirley and the court reporter to the Judge chambers The court stated the bailiff had s brought it to the court attention that Jurar Shirley had advised the bailiff s that he knew one of the offtcers who would be a witness Juror Shirley indicated he had worked with Detective Prejean at the East Baton Rouge Parish Sheriff Office The following colIoquy occurred s Court And the fact that you know him would that cause you to give his testimony any more weight because you know him Well I would believe him but I would have to Shirley hear and weigh all of the evidence of all the case before I would make any decision about the case you know Court Okay But what I need to know is because of the fact that you know this officer would that keep you in any way from being fair and impartial to both parties in this case am No Ma Shirley everything I can be fair and Pd listen to Court So then what you telling me is that during this re trial you would listen to all the facts and all the evidence and then make a decision from what those facts are and that you 6 could give this defendant a fair trial even though you know this ofticer Shirley Yes Ma I would am Court So you would not give more weight to his testimony because ofthe fact that you know the officer Shirley Na I would not Court And you can be fair and impartial to both the State and the defendant Shirley I will be fair Yes Ma am Court Okay Now we have an alternate that can step up and you would not have to stay if you Shirley No Ma am give him a fair trial I would like to stay and yes I will Court Okay And you are sure Shirley Yes Ma am Court All right Thank you Sir Shirley Thank you Ma am Following the recess in an unrecorded bench conference the court advised the State and the defendant that it had questioned Jurar Shirley In post trial pleadings the defense set forth d counsel immediately urged the efense right of the defendant to be present at any voir dire of a juror The defendant sright to be present during the questioning of Juror Shirley was violated See La Code Crim P art 831 State v 3 A Copeland 419 So 899 905 La 1982 State v Clay 441 So 1227 2d 2d 31 1230 La App lst Cir 1983 writ denied 446 So 1213 La 1984 2d However the provisions of Article 31 are not absolute An accused may waive his presence by voluntary absence La Code Crim Proc art 832 or by not objecting to his absence from an Article 831 hearing as 3 A required under the general contemporaneous objection rule to preserve the 7 matter State v Broaden 99 La 2 780 So 2d 349 360 cert 2124 O1 21 denied 534 U 884 10 La Code of Crim Pro art 841 S O1 1 A The transcript of the proceeding reflects the trial court request that s counsel approach the bench after she questioned Juror Shirley in chambers Neither party disputes that the triai court advised counsel at that time of the communication with Juror Shirley Although the defendant trial counsel s asserted that he lodged an objection to the improper juror communication during the bench conference the State does not concede that fact and the record does not reflect an objection by defense counsel on the record after the completion of the unrecorded bench conference Because the record does not confirm that defense counsel made a contemporaneous objection as required by Article 841 A the defendant is precluded from raising this issue on appeaL See Broaden 780 So 2d at 360 State v Howard 31 La 807 App 2 Cir 8 746 So 2d 49 56 writ denied 1999 La 5 99 18 2960 00 760 So 2d 1190 State v Brown 07 La App 3 Cir 10 966 So 388 07 3 2d 57 writ denied 07 La 3978 So 2d 304 and writ 2159 08 28 113 denied 08 La 3 978 So 2d 312 0326 08 28 This assignment of error is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to La Code Crim P art 920 which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence La Code Crim P art 920 2 Louisiana Revised Statutes 14 in pei part provides 2 50 The court in its discretion may sentence in addition to any other penalty provided by law any person who is convicted of a crime of violence as defined in R S 8 B 2 14 to an additional three years imprisonment when the victim of such crime is sixty years of age or older at the time the crime is five committed Simple kidnapping is a crime of violence La R 14 S 2 17 B Pursuant to La R 14 the trial court imposed an additional S 50 2 three years at hard labor to the defendant ssentence because the victim was five sixty years of age or older The statute however does not provide for the additional penalty to be served at hard labor The statute failure to s provide for hard labor may be the result of legislative oversight Nevertheless it is a well tenet of statutory construction that established criminal statutes are subject to strict construction Any ambiguiry in the substantive provisions of a criminal statute is resolved in favor of the accused and against the State Accordingly imprisonment at hard labor cannot be imposed under this statute State v Williams 01 La App 1398 lst Cir 3 815 So 378 382 writ denied 02 La 5 02 28 2d 83 1466 03 9 843 So 38 See and compare La R 14 prior to amendment by 2d S 643 La 2006 Acts No 208 1 Accordingly we amend the sentence by deleting that provision of the sentence which requires the additional penalty of imprisonment for three years under La R 14 be served at hard S 50 2to labor We remand this case to the trial court for correction of the minutes and the commitment order We also note the trial court did not wait twenty hours after four denying the motions for a new trial and for a post judgment of verdict acquittal before imposing sentence La Code Crim P art 873 See also State v Wilson 526 So 348 350 La App 4th Cir 1988 writ denied 2d 541 2d So 851 La 1989 La Code Crim Art 873 refers to both motions for a new trial and in arrest of judgment when it requires the four twenty hour delay Thus the trial court failure to delay after denying s 9 a motion for post judgment of acquittal should be analogously verdict treated However the issue was neither assigned as error nor was the sentence challenged nor does the defendant cite any prejudice resulting from the court failure to delay sentencing Thus any error which occurred s is not reversible See State v White 404 So 2d 1202 1204 La 1981 and State v Perez 95 La App 1 Cir 12 686 So 2d 114 118 writ 2445 96 20 denied 97 La b 695 So 2d 1351 0280 20i97 CONVICTION AFFIRMED REMAND SENTENCE INSTRUCTIONS AND AFFIRM AS AMENDED 10 WITH FIRST CIRCUIT STATE OF LOUISIANA COURT OF APPEAL VERSUS STATE OF LOUISIANA 2012KA 1555 KENNETH TRUMAN ROBERTS JR CRAIN J concurring I join m the ma opimon m all respects but write separately to address a ority sentencing error under Apprendi v New Jersey 530 U 466 2000 and Blakely S v Washington 542 U 296 2004 identified while reviewing for error pursuant S to Louisiana Code of Civil Procedure article 920 The trial court added three years to the defendant sentence pursuant to s Louisiana Revised Statute 14 because the victim was sixty years of age 2 50 five or older at the time the crime was committed The verdict form does not reflect a finding by the jury regarding the age of the victim and that fact was not admitted by the defendant Any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment submitted to a jury and proven beyond a reasonable doubt Apprendi 530 U at 476 The S statutory maximum sentence far Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant Blakely 542 U 296 303 2004 State v Hines 10 S 1118 La App 1 Cir 12 52 So 3d 1120 1126 lfl 22 The verdict form reflects only that the jury found the defendant guilty of simple kidnapping a violation of Louisiana Revised Statute 14 which is subject 45 to a maximum sentence of imprisonment of five years with or without hard labor and a fine of not mare than five thousand dollars La R 14 S 45B The trial court sentenced the defendant to the maximum of five years imprisonment then utilized 1 Section 50 to add three more years to the sentence Defense counsel objected to 2 the enhancement Under these circumstances an Apprendi violation occurred However the failure to submit a sentencing factor to the jury like the failure to submit an element of the offense to the jury is not structural errar and remains subject to harmless error analysis Washington v Recuenco 548 U 212 221 S State v Gibson 09 La App 5 Cir 3 38 So 3d 373 381 writ denied 486 10 9 0802 10 La 11 50 So 3d 814 Where a reviewing court concludes beyond 10 5 a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence such that the jury verdict would have been the same absent the error the error is properly found to be harmless Neder v United States 527 U 1 17 1999 S In this case the State introduced in evidence a statement signed by the victim showing her date of birth to be January 21 1938 making her 73 years old when the offense occurred In light of this uncontested evidence I find that the Apprendi violation was harmless error 2
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.
