State of Louisiana v. Renaldo Gerard Sweet

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-85

STATE OF LOUISIANA

VERSUS

RENALDO GERARD SWEET

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 94,410
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

AFFIRMED.

Michael Harson
District Attorney, 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff/Appellee
State of Louisiana

David Michael Smith
Asst. District Attorney
P. O. Box 3602
Lafayette, LA 70502
(337) 237-7955
Counsel for Plaintiff/Appellee
State of Louisiana
D. Warren Ashy

P. O. Box 2515
Lafayette, LA 70502-2515
(337) 237-0000
Counsel for Defendant/Appellant
Renaldo Gerard Sweet

Renaldo Gerard Sweet
LaSalle Correctional Facility
15976 Hwy. 165-Dorm E
Olla, LA 71465-4801
In Proper Person:
Renaldo Gerard Sweet

GREMILLION, Judge.

In this case, the defendant, Renaldo Gerard Sweet, was convicted of the

crime of armed robbery, in violation of La.R.S. 14:64, and was sentenced to thirty

years at hard labor without benefit of probation, parole, or suspension of sentence,

with credit for time served. Defendant now appeals his conviction and sentence. For

the following reasons, we affirm.

WEIGHT AND SUFFICIENCY OF EVIDENCE

Defendant contends that the verdict is contrary to the law because the

evidence was insufficient to convict him of armed robbery. He also claims that the

trial court erred by giving improper weight to his alibi witnesses’ testimony and the

identification by the victim.

In considering questions of sufficiency of the evidence, a
reviewing court must consider the evidence presented in the light most
favorable to the prosecution and consider whether a rational trier of fact
could have concluded that the essential elements of the offense were
proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers
to rational credibility and evidentiary determinations of the trier of fact.
State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ

denied, 03-2913 (La. 2/13/04), 867 So.2d 686.

Defendant was convicted of armed robbery in violation of La.R.S. 14:64.

Louisiana Revised Statute 14:64 provides: “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.” Thus, the State had to prove beyond a reasonable doubt that Defendant was

armed with a dangerous weapon when he took the victim’s car from the victim’s

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immediate control.

At trial, Randy Girouard testified that on February 10, 2002, he attended

Mardi Gras festivities in St. Martinville and drank two half-pint bottles of Mad

Dog/20-20. He later went home and “slept it off” before going out in Lafayette later

that night. At about 10:45 p.m., he drove his car to the Mardi Gras festivities in

Lafayette. Girouard testified that he was not intoxicated at the time. While looking

for a parking spot, he saw a few guys he knew in the Hollywood Barber Shop parking

lot. He testified that he noticed an unknown man, wearing a gray hooded sweatshirt,

moving from one small crowd of people to another. He stated that he was flagged

down by an acquaintance so he parked his car and left it running with the parking

lights on. Girouard testified that he got out of his car and walked up to the group of

about four guys. He said he greeted his friend, but soon realized that something was

wrong. He said he looked back and saw the man in the hooded sweatshirt getting into

his car. Girouard testified that he ran to his car and grabbed the driver’s side door as

the man was closing it. He said he was about four feet from him when Defendant

pointed a gun in his face and told him to “back the f _ _ k up.” Girouard stated that

he moved in front of the car and asked anyone with a cellular phone to call the police.

He testified that he could have stopped Defendant if he had not had the gun.

Girouard identified Defendant in open court. He said he got a good look

at his hooded face while he was in his car. Girouard testified that he was clearly able

to see the man’s facial features again as he drove off, removed his hood, and looked

back at him.

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While Girouard was trying to borrow a cellular phone to report the

robbery, a man from the crowd told him that the person who stole his car was Renaldo

Sweet. The man told him that he had been talking to Sweet when Girouard was on

Surrey Street, then Sweet walked over to the group of guys Girouard had stopped to

talk with. The man also told him that Sweet had gone to Acadiana High School. The

man did not want to give Girouard his name or get involved. Girouard testified that

he did not try to find the man later nor did he ask his friends for his identity.

Girouard met with the police at his house and gave them a description of

the robber. Girouard testified that he later looked in a 1997 Acadiana High School

yearbook and found a picture of Renaldo Sweet. He identified the photograph as the

same man who took his car. Girouard later identified Defendant in a photographic

lineup presented to him by the Lafayette Police Department. Girouard said he

immediately identified photograph number three as the man who robbed him.

On cross examination, Girouard stated that the Simcoe strip is very

crowded during Mardi Gras and that there are several clubs in the area. He denied

knowing that the area is the highest crime area in Lafayette. He testified that he left

his car running because he did not think anyone would take it, he knew a few of the

people in that parking lot, and he did not venture far from his car. Girouard admitted

he was far enough away from his car for someone to get into it without him realizing

it.

Regarding his identification of Defendant, Girouard stated that he saw

him clearly from a few feet away, but he did not notice any identifying marks, tattoos,

or scars on Defendant’s face. However, Defendant has two tattoos on his neck, which

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he had at the time of this incident. He has a blood red tattoo dripping “blood” in the

middle of his throat and a tattoo reading “Raw” on the left side of his neck.

Lafayette Police Detective Brian Racca testified that when he interviewed

him, Girouard had already developed Defendant as the suspect from information he

acquired at the scene and from a high school yearbook. He testified that because the

identity of the robber was supplied by Girouard, he did not obtain a detailed

description. Eleven days later, Detective Racca showed Girouard a photographic

lineup. He testified that he did not suggest to Girouard that the individual involved

was pictured in the lineup. He stated that he only showed Girouard the one

photographic lineup and did not show him any other lineups minus Defendant’s

photograph. Girouard positively identified Defendant as the robber.

Girouard’s vehicle was later recovered in Vermilion Parish, where it had

been stripped and burned. Defendant was arrested based on a warrant Detective Racca

prepared for carjacking. He stated that the crime of carjacking was chosen based on

the information Girouard supplied to the police. Detective Racca stated that after

Defendant was arrested, he denied any involvement in the robbery.

Kendrick S. Boudreaux, a lifelong friend of Defendant, testified that he

drove Defendant to Baton Rouge on Saturday, February 9, 2002, the day before the

incident in question. He claimed that Defendant was going to visit his daughter and

her mother, Nikki. Boudreaux said he could not remember Nikki’s address or

neighborhood, and explained that Defendant had given him directions over the phone.

He testified that he dropped Defendant at Nikki’s house late Saturday night and then

drove to his girlfriend’s house in Duson. Boudreaux stated he picked up Defendant

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at Nikki’s house in Baton Rouge late Monday night, February 11th, at approximately

1:00 a.m. He testified that Defendant did not return to Lafayette before Monday

because Defendant called him from Nikki’s house on Monday afternoon and because

he had no other ride home.

Boudreaux also stated that he learned a few weeks after Defendant was

arrested that someone had accused him of a crime. However, he stated that he did not

talk to Defendant until a few days before trial, even though Defendant had been in jail

about one year. Boudreaux explained that he had previously talked to Defendant’s

lawyer after he learned from Defendant’s mother the date of the suspected crime.

Boudreaux admitted he has a 1999 conviction of accessory to armed robbery, but

stated that he has served his time and is not on probation or parole.

Diondra Laday, another long-time friend of Defendant, testified that she

was living with Defendant’s mother at the time of the incident because she was dating

his brother. She stated that she had a phone conversation with Defendant at 11:30

p.m. on the night in question, February 10th. Laday testified that she remembered the

date because it was one day before her birthday, February 11th. She said that she

remembered asking Defendant what he was going to bring her from Baton Rouge for

her birthday the next day. She stated that when Defendant called, the caller ID box

attached to her phone showed Baton Rouge and displayed a number beginning with

the area code 225. However, she could not remember the complete phone number.

On cross examination, Laday testified that she talked to Defendant’s

mother about a week after he was arrested and learned that she might be a witness in

the case because she had talked to Defendant on February 10th. She stated that she

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did not notify the police about this information, but instead told Defendant’s mother,

who then told his lawyer.

Elements of Armed Robbery

Defendant argues that the evidence at trial was insufficient to convict him

of armed robbery. Without conceding that he was involved in the crime, Defendant

contends that the evidence, when viewed in the light most favorable to the State, could

have sustained a conviction for nothing more than the offense of carjacking. La.R.S.

14:64.2 states, in pertinent part:

Carjacking is the intentional taking of a motor vehicle, as defined
in R.S. 32:1(40), belonging to another person, in the presence of that
person, or in the presence of a passenger, or any other person in lawful
possession of the motor vehicle, by the use of force or intimidation.

Defendant argues that armed robbery requires a taking from the

immediate control of another and that the facts establish that Girouard was not in

control of his car while he was standing several feet away from it. He contends that

if Girouard had the immediate control of his car, no one could have gotten into it

without his knowledge. Defendant claims that the evidence supports only a charge of

carjacking, as the robber had already taken control of Girouard’s car and was in the

process of driving off when he revealed the gun.

In State v. Jones, 36,553 (La.App. 2 Cir. 1/9/03), 840 So.2d 7, writ

denied, 03-956 (La. 10/3/03), 855 So.2d 309, the second circuit resolved a similar

issue. In Jones, the victim was delivering newspapers to coin operated boxes when

he pulled up next to a box, left his engine running, and stepped a few feet away while

carrying the papers to the box. An armed robber appeared and hit the victim in the

head several times with a gun during a brief struggle. A second man appeared and

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knocked the victim down. The two men then got into the van and drove away. The

defendant argued that the victim’s van was not in his immediate control as required

by the armed robbery statute. The court found the evidence was sufficient to prove

armed robbery even though the victim was not occupying his van at the time it was

taken.

The Louisiana Supreme Court in State v. Cooks, 97-0999, p. 28 (La.

9/9/98), 720 So.2d 637, 652, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342 (1999), has

stated:

This court has stated the immediate control requirement of the
armed robbery statute is satisfied when property taken is within the
presence of the owner. State v. Refuge, 300 So.2d 489 (La.1974). This
court has further noted that armed robbery may occur where property
taken is not in actual contact with the victim. State v. Verret, 174 La.
1059, 142 So. 688 (1932); State v. Boelyn, 432 So.2d 260, 261-262
(La.1983).

In the instant case, although Girouard testified at trial that he had walked

away from his car, he also stated that once he realized his car was being taken, he

returned to it, grabbed the open door, and tried to prevent Defendant from driving

away. It was at this point that Defendant aimed the gun at Girouard. Given these

facts, the trial court could have found that the State proved the elements of armed

robbery beyond a reasonable doubt.

Faulty Identification

Defendant also argues that the trial court erred in relying on Girouard’s

tainted and inexact identification of him as the armed robber. He claims that Girouard

had drunk two bottles of liquor that day, his name was suggested to Girouard, and that

even though Girouard allegedly got a good look at him, he never saw any tattoos.

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Defendant cites State v. Ourso, 502 So.2d 246 (La.App. 3 Cir.), writ

denied, 505 So.2d 1138 (La.1987), for the holding that where the identity of the

perpetrator is the key issue at trial, the state has the burden of negating all reasonable

probability of misidentification. He claims that, in the instant case, there is a high

probability of misidentification because Girouard did not see the obvious tattoos on

his neck. However, Girourad’s testimony indicated that Defendant had a hood pulled

over his head during the robbery, but that he removed the hood and looked back at

him as he drove away. Moreover, there is no evidence that would show that the

tattoos were clearly visible at night considering the type of garment worn by

Defendant.

Although Defendant did not file a motion to suppress the identification,

he complains that the identification was tainted and relies on the five-factor test for

determining the admissibility of a suggestive pretrial identification. In State v.

Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056,

120 S.Ct. 1562 (2000), the supreme court stated:

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d
140 (1977), the Court held that an identification may be permissible,
despite the existence of a suggestive pretrial identification, if there does
not exist a “very substantial likelihood of irreparable misidentification.”
The factors which courts must examine to determine, from the totality of
the circumstances, whether the suggestiveness presents a substantial
likelihood of misidentification include (1) the witness’ opportunity to
view the criminal at the time of the crime; (2) the witness’ degree of
attention; (3) the accuracy of the witness’ prior description of the
criminal; (4) the level of certainty demonstrated at the confrontation;
and (5) the time between the crime and the confrontation. Id. at 114, 97
S.Ct. 2243.

In the instant case, Girouard testified that he was able to see Defendant’s

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face when he grabbed his car door and Defendant pointed a gun at him from inside the

car. He testified that he was focused on Defendant and on preventing him from

driving away with his car. Girouard stated that he was positive that Defendant was

the man who took his car. He also positively identified Defendant in a photographic

lineup eleven days after the robbery.

On the other hand, Defendant contends that Girouard’s identification was

suspect because he was drunk, it was dark, and he was at a Mardi Gras parade at the

time of the robbery. He further argues that Girouard did not see the obvious tattoos

on his neck. Despite this fact, the trial court determined that Girouard’s testimony

was credible and we will not second-guess the trial court’s credibility determinations.

Weight of Alibi Testimony

Defendant argues that the trial court failed to adequately consider the

testimony of his alibi witnesses, Boudreaux and Laday. He claims that the witnesses

established that he was in Baton Rouge when the armed robbery occurred in Lafayette

on Sunday, February 10th. Thus, he contends that the witnesses’ testimony, along

with Girouard’s questionable identification, established reasonable doubt as to his

identification.

With regard to witness testimony, we have said:

The trier of fact may accept or reject, in whole or in part, the
testimony of any witness. State v. Williams, 452 So.2d 234 (La.App. 1
Cir.1984), writ not considered, 456 So.2d 161 (La.1984), reconsideration
not considered, 458 So.2d 471 (La.1984). The fact that the record
contains evidence which conflicts with the testimony accepted by the
trier of fact does not render the evidence accepted by the trier of fact
insufficient. State v. Tompkins, 403 So.2d 644 (La.1981), appeal after
remand[,] 429 So.2d 1385 (La.1982). Thus, in the absence of internal
contradictions or irreconcilable conflict with physical evidence, one
witness’ testimony, if believed by the trier of fact, is sufficient to support

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the requisite factual conclusion. State v. Owens, 606 So.2d 876 (La.App.
2 Cir.1992).

State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir. 1993), writ denied, 93-2774 (La.

1/13/94), 631 So.2d 1163.

A review of the record reveals that the trial court chose to believe

Girouard’s testimony over that of Defendant’s alibi witnesses. It is the role of the

factfinder to weigh the credibility of witnesses and this court should not second-guess

those credibility determinations beyond the sufficiency evaluations under the Jackson

standard of review. Accordingly, we cannot say that the trial court abused its

discretion. When viewing this evidence in the light most favorable to the State, we

find that the evidence presented at trial was sufficient to support Defendant’s

conviction of armed robbery. Therefore, these assignments of error are without merit.

EXCESSIVE SENTENCE

In his final assignment of error, Defendant contends that his sentence of

thirty years at hard labor without benefit of probation, parole, or suspension of

sentence is excessive. Although he neither objected to the length of his sentence at

his sentencing hearing nor filed a motion to reconsider sentence as required by

La.Code Crim.P. art. 881, we shall review Defendant’s sentence for constitutional

excessiveness pursuant to our decision in State v. Graves, 01-156 (La.App. 3 Cir.

10/3/01), 798 So.2d 1090, writ denied, 02-0029 (La. 10/14/02), 827 So.2d 420.

Defendant was convicted of armed robbery and sentenced to serve thirty

years at hard labor for armed robbery. He could have been sentenced to a term of

imprisonment from ten to ninety-nine years without benefit of parole, probation, or

suspension of sentence. La.R.S. 14:64. In sentencing Defendant, the trial court made

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the following comments:

Well, this has been a hard decision for me, and I had a lot of
information to look at to decide what would happen to you. I’ve
reviewed the guidelines for the crime of armed robbery, and I had
decided at first to give you more time than this, but in an effort to let you
get out at least when you are a fairly young man, I’m going to sentence
you to thirty (30) years.

The Defendant alleges that this sentence is excessive.

The standard of review for Louisiana appellate courts in
determining whether a sentence levied upon a particular defendant was
excessive is the manifest-abuse-of-discretion standard. State v. Guzman,
99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable
latitude in imposing sentences within the constraints provided by law.
State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in
State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the
Louisiana Supreme Court held that “[a] sentence may violate a
defendant's constitutional right against excessive punishment even if it
is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762
(La.1979). Furthermore, under both United States and Louisiana law, a
sentence is unconstitutionally excessive if it “(1) makes no measurable
contribution to acceptable goals of punishment and hence is nothing
more than the purposeless and needless imposition of pain and suffering;
or (2) is grossly out of proportion to the severity of the crime.” Coker v.
Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982
(1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37,
citing State v. Dorthey, 623 So.2d 1276 (La.1993).

State v. Wilturner, 03-719, p. 5 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, 746.

Although the trial court did not specifically mention Defendant’s pre-

sentence investigation report, we note that the twenty-three-year-old Defendant is a

second felony offender. In State v. Valrie, 99-226 (La.App. 3 Cir. 10/13/99), 749

So.2d 11, writ denied, 99-3236 (La. 4/20/00), 760 So.2d 343, we upheld a thirty-year

sentence for armed robbery for a second-felony defendant. Based on the Defendant’s

status as a second felony offender and this court’s ruling in Valrie, we cannot say that

the trial court abused its discretion in imposing his sentence nor can we say that the

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sentence makes no measurable contribution to acceptable penal goals. Accordingly,

Defendant’s sentence is not excessive and this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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