NOT DESIGNATED FOR PUBLICATION
The defendant, Gregory Sealey, was charged by bill of information with first degree robbery, a violation of La. R.S. 14:64.1. The defendant pled not guilty. After a trial by jury, the defendant was unanimously found guilty as charged. The defendant was sentenced to twenty-six years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Contending there are no non-frivolous issues to support an appeal, defense counsel filed a brief with this court raising no assignments of error and seeking to withdraw as counsel of record. A copy of defense counsel's brief and motion to withdraw were sent to the defendant. Defense counsel informed the defendant of his right to file a supplemental brief on his own behalf. Subsequently, the defendant filed a supplemental brief raising four assignments of error. For the following reasons, we affirm the defendant's conviction and sentence and grant defense counsel's motion to withdraw.
STATEMENT OF FACTS
On February 15, 2015, around 7:00 p.m., the defendant entered Mid-City Mart located at 1334 Florida Boulevard, in Baton Rouge, Louisiana. The defendant asked a cashier, Chrystal McCray, for a magic marker. McCray instructed the defendant to check the third aisle. The defendant looked down the aisle and exited the store without making a purchase. McCray and two other employees, Megan Woods and Nathaniel Johnson, then observed the defendant pacing back and forth in the parking lot. The defendant ultimately reentered the store with a cell phone, appearing to be having a telephone conversation. The defendant, who was wearing a black hooded jacket at the time, told McCray, "[o]pen the drawer or I'm going to shoot you." McCray did not see a weapon, but she believed that the defendant had a gun in the pocket of his jacket. McCray complied, noting that she opened the register, pushed aside some large bills, and attempted to pass the defendant an amount of cash. The defendant then grabbed the till from the drawer, lunged over the counter to grab a number of twenty dollar bills located in the bottom of the drawer, and quickly exited the store. The store employees contacted the Baton Rouge Police Department. The police arrived on the scene within approximately twenty minutes and were provided with a description of the defendant. Johnson, who had briefly pursued the defendant on foot, further indicated the direction in which the defendant headed after exiting the store. The defendant was located, apprehended, and brought back to the store, whereupon the three witnesses identified him as the perpetrator. The incident was captured on video by the store's video surveillance camera, which footage was played for the jury at trial.
PRO SE BRIEF
Assignment of Error Number 3
In the defendant's third pro se assignment of error, which we must consider first,
In reviewing the sufficiency of the evidence to support a conviction, we are controlled by the standard enunciated by the United States Supreme Court in
Louisiana Revised Statute 14:64.1(A) defines first degree robbery as the 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, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. The victim's subjective belief that the perpetrator was armed with a dangerous weapon, if objectively reasonable given the factual circumstances, is sufficient to support a conviction for first degree robbery.
McCray, Woods, and Johnson were all present at Mid-City Mart at the time of the robbery, and each testified at trial. McCray, Woods, and Johnson consistently described the defendant and identified him in open court as the person they saw in or around the store around the time of the robbery. More specifically, McCray identified the defendant as the person who threatened to shoot her and demanded she open the cash drawer. McCray noted that she had a good view of the defendant, whom she stated was less than two feet away from her. McCray responded in the affirmative when asked whether she believed the defendant had a weapon at the time of the robbery, and, when asked what type of weapon she believed the defendant possessed, clarified "[a] gun."
Officer Brandon Blackwell of the Baton Rouge Police Department, one of the police officers who responded to the incident, testified at trial that he located the defendant approximately one block away from the store. Officer Blackwell acknowledged that he did not find a weapon on the defendant, but testified that he recovered a "wad" of money, including several twenty dollar bills, from one of the defendant's shoes after he placed the defendant into custody. Officer Blackwell stated the defendant was then brought back to the store for a show-up lineup, whereupon McCray, Woods. and Johnson each noticed that the defendant had changed his clothes, but individually identified him as the perpetrator of the robbery. Notably, while the defendant complains that there were discrepancies as to the amount of money taken, Officer Blackwell testified that the amount of money recovered from the defendant and returned to the store "synced up" with the amount of money determined to be missing.
In light of the totality of the evidence, including the identification of the defendant as the perpetrator of the robbery by the witnesses at the scene of the incident and at trial, along with the specific testimony of one of the victims concerning her belief that the defendant possessed a gun, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could have found that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of first degree robbery and the defendant's identity as the perpetrator of the crime. We cannot say the jury's determination was irrational under the facts and circumstances presented to them.
Next, with respect to the admissibility of the video surveillance footage shown to the jury, we first note that the defendant did not object when the video surveillance footage was played to the jury at trial. Pursuant to La. Code Crim. P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. Since the defendant failed to contemporaneously object to the admission of the video surveillance footage, this issue was not preserved for appellate review.
Assignments of Error Numbers 1 & 2
In his first and second pro se assignments of error, which are argued together in brief, the defendant contends he was wrongfully denied a preliminary examination hearing and claims that he received ineffective assistance of counsel. The defendant argues that a preliminary examination hearing would have given him a chance to learn more about his case. He notes that he was transported over one-hundred-fifty miles from the parish where he was arrested and brought back on the date of the court hearing. The defendant claims that he was not afforded an opportunity to meet with the public defender or seek private counsel.
First, we address the issue of the preliminary examination hearing. The primary function of a preliminary examination is to determine if there is probable cause to believe a defendant has committed a crime in order to hold him in custody or under bond obligation pending trial.
Next, we turn to address the defendant's allegation of ineffective assistance of counsel.
Here, we find that the defendant has wholly failed to make an adequate showing of deficient performance of counsel and has failed to make any showing of prejudice. We note that to the extent there are any allegations of ineffectiveness raised by the defendant in his supplemental brief, the allegations relate to matters of trial preparation and strategy, the evaluation of which requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal.
Assignment of Error Number 4
In his final pro se assignment of error, the defendant complains that the State presented false information in a notarized affidavit. The defendant avers the affidavit incorrectly states that he was transported from the scene of the crime to East Baton Rouge Parish Prison, where he was booked.
The State points out on appeal that the defendant did not brief his fourth assignment of error. In the body of the defendant's supplemental brief, the defendant simply restates his fourth assignment of error, claims that he was taken by ambulance to the hospital, and asserts that the hospital reports may be an important key in the case and were not mentioned at trial. The defendant does not explain how the hospital reports would be an important factor in the case at bar, does not make any particularized argument with respect to the allegedly false affidavit, and cites no legal authority in support of the assignment of error. Therefore, we regard the defendant's fourth assignment of error as abandoned.
In conformity with
Here, we find that defense counsel has complied with all the requirements necessary to file an