STATE v. SEALEY

No. 2016 KA 1389.

STATE OF LOUISIANA, v. GREGORY SEALEY.

Court of Appeal of Louisiana, First Circuit.


Attorney(s) appearing for the Case

Prentice L. White , Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Gregory Sealey.

Gregory Sealey, Grayson, Louisiana, Defendant/Appellant, In Proper Person.

Hillar C. Moore, III , District Attorney, Monisa L. Thompson , Assistant District Attorney, Baton Rouge, Louisiana, Counsel for Appellee, State of Louisiana.


NOT DESIGNATED FOR PUBLICATION

THERIOT, J.

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,1 he appears to challenge the sufficiency of the evidence in support of his conviction and the admissibility of video surveillance footage shown to the jury. The defendant specifically disputes some of the facts presented at trial and contends that the video surveillance footage played during the trial was not the same as the video surveillance footage he was shown at a pretrial status hearing. The defendant adds that the video surveillance footage played during the trial was not shown to him until fourteen days before the trial.

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 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review, which is codified by La. Code Crim. P. art. 821(B), tests whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Brown, 03-0897 (La. 4/12/05), 907 So.2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). When analyzing circumstantial evidence, La. R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 02-1492 (La. App. 1 Cir. 2/14/03), 845 So.2d 416, 420.

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. See State v. Caples, 05-2517 (La. App. 1 Cir. 6/9/06), 938 So.2d 147, 151, writ denied, 06-2466 (La. 4/27/07), 955 So.2d 684; State v. Jones, 31,613 (La. App. 2 Cir. 4/1/99), 733 So.2d 127, 140, writ denied, 99-1185 (La. 10/01/99), 748 So.2d 434. Where the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 04-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. Id.

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. See Ordodi, 946 So.2d at 662.

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. See State v. Todd, 03-1230 (La. App. 3 Cir. 2/4/04), 866 So.2d 1040, 1041-42, writ denied, 04-0588 (La. 7/2/04), 877 So.2d 143. Furthermore, even if the defendant had properly objected to the introduction of the evidence on the grounds raised on appeal, the defendant concedes that he was given a copy of the video played before the jury fourteen days prior to the trial. Louisiana Code of Criminal Procedure art. 718 requires the State, upon written motion of the defendant, to produce documents and tangible objects that are within its possession, custody, or control and that are intended for use by the State as evidence at the trial. The State is also under a continuing duty to promptly disclose additional evidence that may be discovered or that it decides to use as evidence at trial. See La. Code Crim. P. art. 729.3. The State's failure to comply with discovery procedures does not automatically require reversal; the appellate court must examine the circumstances of the case to determine whether the defendant was prejudiced, and whether any prejudice resulting from the State's non-compliance caused the trier-of-fact to reach the wrong conclusion. State v. Williams, 12-305 (La. App. 5 Cir. 5/16/13), 119 So.3d 131, 145, writ denied, 13-1338 (La. 12/6/13), 129 So.3d 529. Herein, even assuming late disclosure of the video surveillance footage shown to the jury during the trial, the defendant was aware that the video surveillance footage of him in the store would be played at trial and has not shown nor has he presented an argument as to how he was prejudiced by the late disclosure. Thus, the defendant's third pro se assignment of error does not merit relief.

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. See La. Code Crim. P. art. 296; State v. Baham, 13-0901 (La. 6/28/13), 117 So.3d 505, 507 (per curiam). When a criminal defendant believes he has a right to a preliminary examination, he should assert that right before trial by means of an application for supervisory writs. On appeal after conviction, he can no longer allege that he was improperly denied a preliminary examination. State v. Johnson, 529 So.2d 466, 470 (La. App. 1 Cir. 1988), writ denied, 536 So.2d 1233 (La. 1989) (citing State v. Brent, 347 So.2d 1112, 1118 (La. 1977)). Thus, even assuming the defendant was improperly denied a preliminary examination hearing, in the absence of a showing of specific prejudice resulting in an unfair trial, the issue is moot. See State v. Strother, 362 So.2d 508, 510 (La. 1978); State v. Redfud, 325 So.2d 595, 597 (La. 1976).

Next, we turn to address the defendant's allegation of ineffective assistance of counsel.2 It is well-settled that a defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13, of the Louisiana State Constitution. State v. Bias, 14-1588 (La. App. 1 Cir. 4/24/15), 167 So.3d 1012, 1020, writ denied, 15-1051 (La. 5/13/16), 191 So.3d 1053. In assessing a claim of ineffective assistance of counsel, a two-part test is employed. First, the defendant must show that defense counsel's performance was deficient. This requires a showing that counsel made errors so serious he was not functioning as the "counsel" guaranteed under the Sixth Amendment to the United States Constitution. Second, the defendant must show that the deficient performance prejudiced him, which requires a showing that defense counsel's error were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). It is unnecessary to address the issues of both deficient performance of counsel and prejudice to the defendant if the defendant makes an inadequate showing of one of the components. Bias, 167 So.3d at 1021.

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. See State v. Allen, 94-1941 (La. App. 1 Cir. 11/9/95), 664 So.2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So.2d 433. In light of the foregoing, the defendant's first and second pro se assignments of error do not merit relief.

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. See Uniform Rules, Louisiana Courts of Appeal, Rule 2-12.4(B)(4); State v. Ferguson, 15-0427 (La. App. 1 Cir. 9/18/15), 181 So.3d 120, 141, writ denied, 15-1919 (La. 11/18/16), ___ So.3d ___; State v. Williams, 632 So.2d 351, 353 (La. App. 1 Cir. 1993), writ denied, 94-1009 (La. 9/2/94), 643 So.2d 139.

ANDERS BRIEF

In conformity with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), defense counsel filed a brief with this court indicating that after a conscientious and through review of the record, he could not find any non-frivolous issues to raise on appeal and seeking to withdraw as counsel of record.

In Jyles, 704 So.2d at 241-42, the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So.2d 528, 529-31 (La. App. 4 Cir. 1990), which set forth a procedure for appellate counsel to comply with Anders, 386 U.S. at 744, 87 S.Ct. at 1400, wherein the United States Supreme Court discussed how an appellate court should proceed when, upon conscientious review of a case, counsel determines an appeal would be wholly frivolous. In order to comply with Jyles, appellate counsel must review not only the procedural history of the case and the evidence presented at trial, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." 704 So.2d at 242 (quoting State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam)). When conducting a review for compliance with Anders, the appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Thomas, 12-0177 (La. App. 1 Cir. 12/28/12), 112 So.3d 875, 878 (en banc).

Here, we find that defense counsel has complied with all the requirements necessary to file an Anders brief. Defense counsel reviewed the procedural history and facts of the case, and concludes in brief that there are no non-frivolous issues for appeal. Defense counsel certifies that the defendant was served with a copy of the Anders brief and the motion to withdraw as counsel of record. Defense counsel's motion to withdraw notes the defendant has been notified of the motion to withdraw and his right to file a pro se brief on his own behalf. The defendant filed a supplemental brief, which we reviewed and found to be without merit. Furthermore, we have conducted an independent review of the entire record in this matter, including a review for error under La. Code Crim. P. art. 920(2), and have found no non-frivolous issues or trial court rulings that arguably support the appeal. Accordingly, defense counsel's motion to withdraw, which was held in abeyance pending disposition of this appeal, is hereby granted, and the defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

FootNotes


1. In cases such as this one, where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Smith, 03-0917 (La. App. 1 Cir. 12/31/03), 868 So.2d 794, 798. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must review the remaining assignments of error to determine whether the accused is entitled to a new trial. Hearold, 603 So.2d at 734; Smith, 868 So.2d at 798.
2. We note that a claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings. See State v. Calhoun, 96-0786 (La. 5/20/97), 694 So.2d 909, 914. However, where the issue is raised as an assignment of error on direct review and the record on appeal is adequate to resolve the matter, the claim of ineffective assistance of counsel should be addressed in the interest of judicial economy. Id. (citing State v. Ratcliff, 416 So.2d 528, 530 (La. 1982)).

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