State of Louisiana v. Emilio Taylor

Judgment rendered January 11, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,875-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

EMILIO TAYLOR Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 358381

Honorable Christopher T. Victory, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

BRITTANY B. ARVIE
REBECCA A. EDWARDS
Assistant District Attorney

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Before STONE, ROBINSON and MARCOTTE, JJ.

STONE, J.

This criminal appeal comes from the First Judicial District

Court, the Honorable Judge Chris Victory, presiding.1 The defendant,

Emilio Taylor (“the defendant”), was convicted by a unanimous jury of

armed robbery, in violation of La. R.S. 14:64, and with the additional

enhancement penalty for use of a firearm in the commission of the crime, in

violation of La. R.S. 14:64.3. He was adjudicated a second felony offender,

and the trial court ordered the sentences to run consecutive to each other,

resulting in a total sentence of 40 years. This Court affirmed the defendant’s

convictions, vacated the multiple offender adjudication, and remanded to the

trial court for resentencing. On remand, the State withdrew the multiple

offender bill, and the trial court imposed the same 40-year consecutive

sentences. The defendant now appeals his sentence, arguing that the trial

court imposed an unconstitutionally harsh and excessive sentence; and the

trial court erred in denying his motion to reconsider sentence. For the

following reasons, we affirm the defendant’s sentences.

FACTS AND PROCEDURAL HISTORY

The background in this matter was set forth in detail in this Court’s

earlier opinion in State v. Taylor, 53,934 (La. App. 2 Cir. 5/5/21), 321 So. 3d

486 (“Taylor I”):

On May 24, 2018, as Family Dollar employees, Destini Hall
(“Hall”) and Clark Remedies (“Remedies”) were closing the
store, a man wearing sunglasses, a hat, and a bandana over his
face, entered the store. After Remedies exited the restroom
near the rear of the store, the man held Remedies at gun point
and forced him back toward the front of the store, where he
demanded that Hall empty the contents of the register into a

1
Although Judge Victory conducted the re-sentencing hearing, Judge Tutt
presided over the trial, the habitual offender adjudication, and imposed the original
sentence.

pink bag. Next, the man ordered Remedies to open the safe,
and after Remedies refused, he struck Remedies on the head
with the gun. Once the safe was opened and its contents placed
into the pink bag, the man forced Hall and Remedies to the
back of the store, where he then exited through a back door.

Remedies identified the man who robbed the store as the
defendant to responding officers. On May 31, 2018, an arrest
and search warrant were executed at the defendant’s home.
Officers arrested the defendant, and during the search of his
home, recovered approximately $1,595 dollars in cash and a
nine-millimeter handgun. On January 23, 2019, by amended
bill of information, the defendant was charged with one count
of armed robbery with the additional penalty of use of a
firearm. On February 11, 2020, a jury trial commenced. In
addition to video surveillance of the robbery captured by store
security cameras, the following testimony was provided at trial.

First, Hall testified that on the day of the incident, she worked
the closing shift at the Family Dollar on Lakeshore Drive when
the store was robbed. Hall stated that a few minutes after she
started counting the money in her register, she heard talking and
then saw a man walking toward the front of the store holding a
gun to Remedies’ head. The man approached Hall, told her he
didn’t want to hurt anyone, gave her a pink bag, and ordered her
to put the money from the register into the bag. Hall then
testified that the man ordered Remedies to open the safe. After
Remedies stated that he couldn’t, the man repeatedly hit
Remedies on the head with the gun until Remedies eventually
opened the safe, and Hall was then told to place the money
from the safe into the pink bag.

Next, Remedies testified that after he emerged from the
restroom in the back of the store, he was confronted by a man
in shades, a hat, and a bandana over his face. He stated that the
man forced him to the front of the store and hit him over the
head with a gun after he initially refused to open the store safe
upon demand. Remedies further testified that two days prior to
the robbery, the defendant texted him, wondering if he was at
work. Remedies testified that the defendant called and asked if
he would help rob the store, to which he declined and asked the
defendant not to rob the store. After the call, Remedies stated
that he reported this information to the store’s district manager.

Corporal Robert Cerami (“Cpl. Cerami”) of the Shreveport
Police Department (“SPD”) testified that in May 2018, he
assisted in the execution of the search warrant for the
defendant’s residence. As a result of the search, he testified
that cash and a handgun located within a dresser were
recovered. On cross-examination, Cpl. Cerami testified that
although the handgun and cash were recovered from the search
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of the home, no pink bag, hat, or bandana was ever discovered.
Following Cpl. Cerami’s testimony, Detective Richard Turpen
(“Det. Turpen”) of the SPD, who also participated in the arrest
and search of the defendant’s home, testified that the defendant
was found hiding in the attic of his home, and after the
defendant’s oral and written consent was obtained, a handgun
and cash were recovered. 2 Det. Turpen also reviewed the
surveillance footage and testified that during the robbery, the
perpetrator’s hat fell off and revealed that the man’s hair was
styled into what was described as “puffs” or “pom-poms.”

At the conclusion of the trial, the jury returned a unanimous
guilty verdict and the defendant was convicted as charged. The
trial court denied the defendant’s motion for a new trial and
post-verdict judgment of acquittal. On March 11, 2020, the
State of Louisiana (“the State”) tendered a sentencing offer of
25 years at hard labor without benefits for the armed robbery
charge, with a consecutive 35-year sentence for the enhanced
firearm penalty. In exchange, the State offered to dismiss a
pending charge for attempted murder and would forgo filing a
habitual offender bill. On June 25, 2020, the defendant rejected
the State’s offer, the State filed a second felony habitual
offender bill, and the habitual offender hearing commenced that
day. At the conclusion of the hearing, the trial court sentenced
the defendant to 35 years at hard labor, without benefits, with a
five-year sentence for the enhanced firearm penalty.

Because the State filed the supplemental discovery on the day before

the resentencing hearing, and it is not clear from the record whether the

defendant received it in advance of resentencing, the case was remanded to

the trial court. Furthermore, the trial court incorrectly applied the law to the

habitual offender bill and failed to advise the defendant of his right to a 15-

day delay period within which to file objections. On remand, the State

withdrew the multiple offender bill and the trial court imposed the same

consecutive sentences. The defendant was resentenced to 35 years at hard

labor without the possibility of probation, parole or suspension of sentence

2
Det. Turpen identified the handgun as a Browning nine-millimeter handgun
semiautomatic, with a black tarnished colored barrel trigger, with a wooden handle or
grips. The amount of cash recovered from the home was approximately $1,595, and the
identified amount taken from the store during the robbery was a little more than $3,000.

3

for the armed robbery and five years at hard labor without the possibility of

probation, parole or suspension of sentence for use of a firearm during the

commission of the crime. The sentences were ordered to run consecutive to

each other, resulting in a total sentence of 40 years.

On December 23, 2021, the defendant filed a motion to reconsider and

on January 3, 2022, the motion was denied by the trial without a hearing.

The defendant appeals his sentence, urging the following assignments of

error: (1) the trial court imposed an unconstitutionally harsh and excessive

sentence; and (2) the trial court erred in denying his motion to reconsider

sentence. 3

DISCUSSION

Excessive sentence

The defendant argues that the sentence of 40 years is an

unconstitutionally harsh and excessive sentence because the trial court failed

to order a presentence investigation or consider mitigating factors such as his

personal history including his age, or his impending fatherhood. He further

asserts that the sentence should have been tailored to him. The defendant

admits, however, that the trial court compiled with La. C.Cr.P. art. 894.1 and

acknowledged that the sentence is not the maximum sentence available, but

asserts that it is inappropriate to consider the use of a firearm as an

aggravating factor under the circumstances. In opposite, the State urges that

the lower range sentence of 40 years is appropriate because the defendant

has a vast criminal history.

3
We pretermit consideration of this assignment of error because the defendant
did not support this assertion with any argument in his appellate brief. Thus, this issue
will not be addressed.

4

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial court

is not required to list every aggravating or mitigating circumstance so long

as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. West, 53,526 (La.

App. 2 Cir. 6/24/20), 297 So. 3d 1081; State v. Sandifer, 53,276 (La. App. 2

Cir. 1/15/20), 289 So. 3d 212; State v. DeBerry, 50,501 (La. App. 2 Cir.

4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332.

The articulation of the factual basis for a sentence is the goal of La. C.Cr.P.

art. 894.1, not rigid or mechanical compliance with its provisions. Where

the record clearly shows an adequate factual basis for the sentence imposed,

remand is unnecessary even where there has not been full compliance with

La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v.

Lee, 53,461 (La. App. 2 Cir. 4/22/20), 293 So. 3d 1270, writ denied, 20-

00582 (La. 10/14/20), 302 So. 3d 1113; State v. Payne, 52,310 (La. App. 2

Cir. 1/16/19), 262 So. 3d 498; State v. DeBerry, supra. The trial court is in

the best position to consider the aggravating and mitigating circumstances of

a particular case, and, therefore, is given broad discretion in sentencing.

State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S.

1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996); State v. West, supra; State v.

Valadez, 52,162 (La. App. 2 Cir. 8/15/18), 251 So. 3d 1273; State v. Allen,

49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La.

1/25/16), 184 So. 3d 1289. The important elements which should be

considered are the defendant’s personal history (age, family ties, marital

status, health, employment record), prior criminal record, seriousness of the
5

offense, and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049

(La. 1981); State v. DeBerry, supra. The trial court is not required to assign

any particular weight to any specific matters at sentencing. State v. Parfait,

52,857 (La. App. 2 Cir. 8/14/19), 278 So. 3d 455, writ denied, 19-01659 (La.

12/10/19), 285 So. 3d 489.

Second, an appellate court must determine if the sentence is

constitutionally excessive. State v. Smith, 01-2574 (La. 1/14/03), 839 So. 2d

1. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion

to the seriousness of the offense or nothing more than a purposeless and

needless infliction of pain and suffering. State v. Dorthey, 623 So. 2d 1276

(La. 1993); State v. Bonanno, 384 So. 2d 355 (La. 1980); State v. Smith,

supra. The relevant question is whether the trial court abused its broad

sentencing discretion, not whether another sentence might have been more

appropriate. State v. Cook, supra. A sentence is considered grossly

disproportionate if, when the crime and punishment are viewed in light of

the harm done to society, it shocks the sense of justice. State v. Weaver, 01-

0467 (La. 1/15/02), 805 So. 2d 166; State v. West, supra; State v. Meadows,

51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639, writ denied, 18-0259 (La.

10/29/18), 254 So. 3d 1208.

The sentencing court has wide discretion to impose a sentence within

the statutory limits, and the sentence imposed will not be set aside as

excessive absent a manifest abuse of that discretion. State v. Williams, 03-

3514 (La. 12/13/04), 893 So. 2d 7; State v. Allen, supra. The trial court is in

the best position to consider the aggravating and mitigating circumstances of

a particular case, and, therefore, is given broad discretion in sentencing.

State v. Cook, supra; State v. West, supra; State v. Valadez, supra. On
6

review, an appellate court does not determine whether another sentence may

have been more appropriate, but whether the trial court abused its discretion.

State v. Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Tubbs,

52,417 (La. App. 2 Cir. 11/20/19), 285 So. 3d 536, writ denied, 20-00307

(La. 7/31/20), 300 So. 3d 404, on recons., 20-00307 (La. 9/8/20), 301 So. 3d

30, and writ denied, 20-00307 (La. 9/8/20), 301 So. 3d 30.

A presentence investigation report (or “PSI”) is an aid to help the

court, not a right of the defendant, and the court is not required to order that

the report be prepared. State v. Bell, 377 So. 2d 275 (La. 1979); La. C.Cr.P.

art. 875; State v. Weston, 52,312 (La. App. 2 Cir. 11/14/18), 260 So. 3d 722,

writ denied, 18-2066 (La. 4/22/19), 268 So. 3d 299.

At the time of the commission of the alleged armed robbery, La. R.S.

14:64 stated:

A. Armed robbery is 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, while armed with a dangerous weapon

B. Whoever commits the crime of armed robbery shall be
imprisoned at hard labor for not less than ten years and for
not more than ninety-nine years, without benefit of parole,
probation, or suspension of sentence.

At the time of the commission of the alleged armed robbery with the

use of a firearm; additional penalty, La. R.S. 14.64.3 stated:

A. When the dangerous weapon used in the commission of
the crime of armed robbery is a firearm, the offender shall
be imprisoned at hard labor for an additional period of five
years without benefit of parole, probation, or suspension
of sentence. The additional penalty imposed pursuant to
this Subsection shall be served consecutively to the
sentence imposed under the provisions of R.S. 14:64.

At the sentencing hearing, the trial court adequately compiled with

La.C.Cr.P. art. 894.1. The trial court determined that (1) there is an undue
7

risk that during the period of a suspended sentence or probation that the

defendant will commit another crime; (2) the defendant is in need of

correctional treatment or a custodial environment that can be provided most

effectively by his commitment to an institution; (3) a lesser sentence would

deprecate the seriousness of the defendant’s crime; (4) the defendant used

his position as a former employee to facilitate the commission of the

offense; (5) he knowingly created a risk of death or great bodily harm to

more than one person with the use of a firearm; (6) the defendant used actual

violence in the commission of the offense when he severely beat Mr.

Remedies, the employee working at the Family Dollar on the day of the

incident; (7) he used a firearm in the commission of the armed robbery; (8)

there was an economic loss to Family Dollar as well as the employees, Ms.

Hall and Mr. Remedies, because they found it necessary to leave their job;

and (9) Mr. Remedies suffered permanent injuries. We note that presentence

investigation report is not mandatory. Neither the defendant nor his retained

counsel requested a presentence investigation prior to the date of the first

sentencing, on remand, and the defendant did not object to the lack of a

presentence investigation at the time of the hearing. Although, the trial court

did not expressly reference the defendant’s personal history at the time of

sentencing, we note that the court was made aware of his age. Despite the

fact that the trial court was not aided by a presentence investigation report,

the record is sufficient to establish that the State dismissed an attempted

second-degree murder charge and drug charge, both separate incidents from

the current convictions on the defendant’s behalf. As to the first prong of

the excessiveness test, this court finds that (1) the trial court adequately

complied with La. C.Cr.P. art. 894.1; (2) the defendant was not entitled to a
8

presentence investigation; and (3) the trial court did not err in failing to order

one.

As to the second prong of the excessive-sentence test, the sentence of

35 years at hard labor for the armed robbery and five years with the

additional enhancement penalty for using a firearm is not constitutionally

excessive. The State points out that the sentencing range for armed robbery

is 10 to 99 years at hard labor without benefits. The sentence is not out of

proportion to the seriousness of the offenses and does not purposely and

needlessly inflict pain and suffering. Considering the circumstances of this

case in which the defendant brutally pistol whipped and terrorized people he

actually knew (his former coworkers), the 40-year sentence does not shock

the sense of justice. As previously mentioned, the Court noted that the State

dismissed an attempted second-degree murder charge in a separate incident

as well as a pending drug charge. The 40-year sentence imposed in this case

is in the lower-range and falls squarely within the parameters of the

statutorily provided range. The defendant has failed to show that the trial

court abused its discretion in imposing this sentence and that the sentence is

constitutionally excessive. This assignment of error lacks merit and is

rejected.

CONCLUSION

For the forgoing reasons, we affirm the defendant’s sentences for

armed robbery and the additional enhancement for use of a firearm during

the commission of the crime.

AFFIRMED.

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