State of Louisiana v. Carey Louis Hood

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 04-666 consolidated with KA 04-1169

STATE OF LOUISIANA

VERSUS

CAREY LOUIS HOOD

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 267,664
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux Chief Judge, Billy Howard Ezell, and
James T. Genovese, Judges.

AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR
RESENTENCING.

James C. Downs
District Attorney - Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for: Plaintiff/Appellee
State of Louisiana

Kenota Pulliam Johnson
La Appellate Project
P. O. Box 5781
Shreveport, LA 71135-5781
(318) 524-1024
Counsel for: Defendant/Appellant
Carey Louis Hood

Carey Louis Hood
Forcht Wade CC
7990 Caddo Drive
Keithville, LA 71047

EZELL, JUDGE.

On January 24, 2003, the Defendant, Carey Louis Hood, was charged by a bill

of information with one count of possession of cocaine, in violation of La.R.S.

40:967(C) and with one count of simple escape, in violation of La.R.S. 14:110. On

February 7, 2003, the Defendant was arraigned and entered pleas of not guilty to the

charges.

Subsequently, after a trial by jury, on January 13, 2004, the Defendant was

convicted as charged on both counts. Thereafter, on January 20, 2004, the trial court

sentenced the Defendant to two-and-one-half years at hard labor on the charge of

possession of cocaine and five years at hard labor on the charge of simple escape,

with the sentences to run consecutively. On that same date, the State filed a habitual

offender bill to which the Defendant pled not guilty. The Defendant was adjudicated

a fourth felony offender on June 25, 2004, and his sentences were vacated.

Thereafter, on that same date, the trial court sentenced the Defendant to forty years

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

The Defendant is now before this court, alleging five assignments of error.

FACTS

On December 8, 2002, Officer Carla Whitstine, an Alexandria Police Officer,

was patrolling Levin Street in Alexandria. As she was driving, she noticed a black

male riding a bicycle. As she got closer to him, the Defendant jumped off the bicycle

and ran up to a house. At that point the officer was beside the house; she turned on

her “alley light” and observed the Defendant bend down beside the house and throw

something under the porch. The officer left her vehicle and approached the

Defendant to talk to him. By that time another Alexandria Police Officer, Officer

Todd Beaman, had arrived for back up and walked the Defendant over to the police

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cars. Officer Whitstine shined her flashlight under the porch to determine what the

Defendant had thrown away. The officer found a plastic baggy with what appeared

to be a rock of cocaine. Officer Whitstine radioed Officer Beaman to place the

Defendant in handcuffs, which he did without incident. The Defendant was placed

in Officer Whitstine’s patrol car.

Officer Whitstine drove the Defendant to the jail and parked on the third floor

of the parking lot. The officer had the light on in her vehicle and was filling out some

paperwork before taking the Defendant to booking. Officer Whitstine testified that

she was talking to the Defendant and looking at him in her rearview mirror while she

filled out the paper work. After filling out the paper work, the officer removed the

Defendant from her patrol car and began to take him into the jail. As they were

waiting for the elevator, the Defendant took off running and escaped through the

stairwell.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, we find

one error patent requiring the vacation of the sentence imposed.

The present Defendant was convicted of one count of attempted possession of

cocaine and one count of simple escape. At the original sentencing, the Defendant

was sentenced to two-and-one-half years for attempted possession of cocaine and five

years for simple escape. Subsequently, the Defendant was charged as a fourth

habitual offender. At the habitual offender sentencing, the trial court vacated both

of the previously imposed sentences and imposed a single sentence of forty years at

hard labor without benefit of probation or suspension of sentence. The trial court did

not specify which offense or offenses were being enhanced and the habitual offender

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bill did not designate whether the State intended one or both sentences to be

enhanced.

This court addressed a similar situation in State v. Webster, 95-605, p.9

(La.App. 3 Cir. 11/2/95), 664 So.2d 624, 630:

The defendant notes that the trial court did not specify which
armed robbery conviction was being enhanced. Nor did the court
sentence the defendant on the remaining three convictions. . . .

We agree, that the trial court erred in that the record does not
reveal which of defendant's four armed robbery convictions was being
enhanced. Additionally, the trial court should have imposed a separate
sentence on each of the three remaining convictions. Therefore,
defendant's sentence is indeterminate as he was convicted of four counts
of armed robbery and only a single sentence was imposed. See State v.
Bessonette, 574 So.2d 1305 (La.App. 3 Cir.1991); La.Code Crim.P. art.
879. Accordingly, defendant’s sentence will be vacated and the case
remanded to the trial court for clarification as to which count is being
enhanced and for imposition of separate sentences on the remaining
three counts. See State v. Parker, 593 So.2d 414 (La.App. 1 Cir.1991).

As in Webster, we find the sentence imposed in the present case is

indeterminate since the Defendant was convicted of two separate counts and only one

sentence was imposed.

Since the habitual offender bill does not specify which offense or offenses were

to be enhanced, we find the trial court must make such a determination. Enhancement

on each separate count would be appropriate if the counts were the result of separate

felonies arising out of separate criminal episodes. Enhancement would not be

appropriate, however, if the counts were the result of felonies arising out of the same

criminal episode. State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991) and State

v. McCurtis, 00-3080 (La. 11/2/01), 800 So.2d 862.1 We find it is not apparent on the

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This court notes that the Louisiana Supreme Court recently rendered State v.
Johnson, 03-2993, p.5 (La. 10/19/04), 884 So.2d 568,571 wherein the supreme court
revisited its holding in State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992) (on
reh’g) - “that multiple convictions entered on the same day must be treated as a single
predicate under the habitual offender law, even when the convictions stem from

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face of the record whether the present offenses arose out of the same criminal

episode. Thus, we find the Defendant’s sentence should be vacated and the case

remanded for a determination as to whether enhancement has been sought on one or

both offenses. If enhancement is sought on one offense only, the trial court should

resentence the Defendant as an habitual offender on that offense and impose a

separate non-enhanced sentence on the remaining offense. If, however, enhancement

is sought for both offenses, the trial court should determine whether enhancement is

appropriate for each offense. See State ex rel. Porter, 573 So.2d 1106; State v.

McCurtis, 800 So.2d 862; and State v. Johnson, 03-2993 (La. 10/19/04), 884 So.2d

568. If the trial court determines that enhancement is appropriate for each offense,

a separate enhanced sentence should be imposed for each offense.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant assigns as error that the evidence, when viewed in a light most

favorable to the prosecution, was insufficient to find the Defendant guilty of the

charges. The Defendant argues only that the officers misidentified him. In brief the

Defendant does not argue that a crime did not occur, but that he was not the person

who committed the crime.

With regard to sufficiency of the evidence, this court has held:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the

separate and distinct criminal episodes.” Finding that the legislature removed the
sequential requirement for predicate convictions in 1982, the supreme court overruled
its holding in Mims. We find, however, that the supreme court did not overrule the
“single criminal episode” rule as it applies to predicates. The supreme court stated,
“There is no statutory bar to applying the law in sentencing for more than one
conviction obtained on the same date based on unrelated conduct.” Id. At 578.
(emphasis added). The supreme court specifically noted that the record was clear in
the case before it that the “convictions entered on the same date arose from separate
and distinct events, occurring on different dates, and not as part of a single criminal
episode.” Id. at 579, n. 4. Accordingly, we find the “single criminal episode” rule
still stands.

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evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436
So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State
v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witness. Therefore, the appellate
court should not second-guess the credibility determination of the trier
of fact beyond the sufficiency evaluations under the Jackson standard
of review. See King, 436 So.2d 559, citing State v. Richardson, 425
So.2d 1228 (La.1983).

State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27. In

order for the State to obtain a conviction, it must prove the elements of the crime

beyond a reasonable doubt. “In order for this Court to affirm a conviction, however,

the record must reflect that the state has satisfied its burden of proving the elements

of the crime beyond a reasonable doubt.” State v. Kennerson, 96-1518, p. 5 (La.App.

3 Cir. 5/7/97), 695 So.2d 1367, 1371.

In brief the Defendant argues that he was not the person who committed the

crimes. In State v. Jones, 02-1176, p. 13 (La.App. 3 Cir. 2/5/03), 839 So.2d 439, 446-

47, writ denied, 03-886 (La. 11/7/03), 857 So.2d 516, this court quoted the supreme

court as follows:

The Louisiana Supreme Court in State v. Neal, 00-0674
(La. 6/29/01); 796 So.2d 649, stated:

As a general matter, when 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.
Smith, 430 So.2d 31, 45 (La.1983); State v. Brady, 414
So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221,
1227 (La.1982). However, positive identification by only
one witness is sufficient to support a conviction. See State
v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one
witness’s positive identification is sufficient to support the
conviction); State v. Ford, 28,724 (La.App.2d
Cir.10/30/96), 682 So.2d 847, 849-50, writ denied,
99-0210 (La.5/14/99), 745 So.2d 12. . . . The trier of fact
makes credibility determinations and may, within the
bounds of rationality, accept or reject the testimony of any

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witness; thus, a reviewing court may impinge on the “fact
finder’s discretion only to the extent necessary to guarantee
the fundamental due process of law.” Mussall, 523 So.2d
at 1310 (La.1988).

Id. at p. 11, 658.

At trial, Officer Carla Whitstine testified that on the night of December 8,

2002, she was on patrol in Alexandria. While on patrol, Officer Whitstine

encountered a black male on a bicycle. As she approached the Defendant, he looked

back, saw the patrol car, jumped off the bicycle, and ran up beside a nearby house.

Finding this behavior suspicious, Officer Whitstine turned on her alley light and

shined it on the Defendant. As the Defendant was illuminated, the officer observed

the Defendant bend down and throw something under the porch on the house. The

officer exited her vehicle to speak with the Defendant.

At some point while Officer Whitstine was talking with the Defendant, Officer

Beaman arrived as back up. Officer Beaman placed the Defendant near Officer

Whitstine’s patrol car while Officer Whitstine investigated what the Defendant threw

under the porch. Officer Whitstine shined her flashlight under the porch and found

what appeared to be a plastic bag with a rock of crack cocaine inside of it. Upon

finding the drugs, Officer Whitstine radioed Officer Beaman to arrest the Defendant

and place him in her patrol car.

After placing the Defendant in the back of the patrol car, Officer Whitstine

conveyed the Defendant to the jail. Once they arrived at the jail, Officer Whitstine

parked near the doors on the third floor of the parking garage, turned on the inside

light of the car, and began filling out paperwork. Officer Whitstine testified that she

talked to the Defendant and looked at him in the rearview mirror while she filled out

the papers. The Defendant told Officer Whitstine that his name was Chris Duberil

and stated that his birthday was April 16, 1970.

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After completing the paperwork, Officer Whitstine removed the Defendant

from the vehicle and escorted him through a glass door and to the elevator. As

Officer Whitstine reached to push the button to call the elevator, she heard footsteps

and turned to see the Defendant fleeing into the stairwell. At some point after the

Defendant fled, Officer Whitstine identified a photograph of the Defendant as the

man whom she arrested on December 8, 2002.

Officer Todd Beaman testified that he backed up Officer Whitstine on the night

of December 8, 2002. Officer Beaman testified that he waited with the Defendant by

the patrol car while Officer Whitstine investigated what had been thrown under the

porch. At Officer Whitstine’s signal, Officer Beaman placed the Defendant in

handcuffs. In open court, Officer Beaman identified the Defendant as the man who

he waited with and placed handcuffs on the night of December 8, 2002.

Christopher Duberil testified that he was sixteen years old, that he was fourteen

years old in December 2002, and that he did not get arrested on December 8, 2002.

Mr. Duberil further testified that the Defendant, Carey Louis Hood, was his foster

brother. Mr. Duberil stated that Sergeant Rennier came by and Mr. Duberil told

Sergeant Rennier that the Defendant may have been using his name.

Sergeant Mike Rennier testified that he was assigned to the intelligence

division of the Alexandria Police Department in December 2002. Sergeant Rennier

stated that he began looking for Christopher Duberil after Officer Whitstine informed

him that a man calling himself Christopher Duberil had escaped from her custody.

Sergeant Rennier contacted Christopher Duberil, determined that he was not the male

who had escaped from Officer Whitstine and received the name of Carey Louis Hood,

the Defendant. Sergeant Rennier obtained a photograph of the Defendant and showed

it to Officer Whitstine, who identified him as the man who escaped from her custody.

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Sergeant Rennier’s investigation also determined that the Defendant rides a bicycle

in the area where he was arrested.

Officer Clifton Fairbanks testified that on the night of December 24, 2002, he

arrested the Defendant, Carey Louis Hood. Officer Fairbanks was patrolling the area

of Cottage Street. Officer Fairbanks stated that there is a lot of drug activity in that

area, and so someone loitering near a closed store seemed suspicious. The officer

exited his vehicle to ask the Defendant a few questions to find out what he was doing,

and the Defendant took off running. Officer Fairbanks chased the Defendant down,

placed him in handcuffs, and arrested him. After Mirandizing the Defendant, Officer

Fairbanks asked the Defendant why he ran. According to Officer Fairbanks, the

Defendant responded that he was wanted. Officer Fairbanks testified that the

Defendant’s birthday is April 17, 1971.

We find the evidence viewed in a light most favorable to the prosecution

proves that the Defendant is in fact the person who escaped from Officer Whitstine

on the night of December 8, 2002. Both Officer Whitstine and Officer Beaman

positively identified the Defendant. The supreme court has held that one witness’

positive identification is enough to uphold a conviction where identity of the

Defendant is the issue. In addition to the two positive identifications, the State

proved that the Defendant is Christopher Duberil’s foster brother, that the

Defendant’s actual birthday is only two digits different from the one given on

December 8, 2002, when he escaped, that the Defendant was known to ride a bicycle

in the area where he was arrested on December 8, 2002, and that the Defendant

acknowledged being wanted when he was apprehended the second time. We find

therefore that the evidence viewed in a light most favorable to the prosecution is

sufficient to uphold the Defendant’s convictions. Thus, this assignment of error is

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without merit.

ASSIGNMENT OF ERRORS NUMBERS TWO, THREE AND FOUR

By these assignments of error, the Defendant argues that his sentence of two-

and-one-half years for attempted possession of cocaine to run concurrent with a five-

year sentence for simple escape were excessive. The sentences which the Defendant

contests were vacated, and the Defendant was sentenced as a habitual offender. The

Defendant’s original appeal, docket number 04-666, was lodged before the

Defendant’s habitual offender hearing was held. Furthermore, in light of the errors

patent review, we vacate the habitual offender sentence and remand the case for re-

sentencing. We find, therefore, that these assignments of error have been rendered

moot.

ASSIGNMENT OF ERROR NUMBER FIVE

As his final assignment of error the Defendant alleges that the evidence was

insufficient to support his conviction as a fourth felony offender. We find that the

Defendant complains only about the information contained in State’s exhibit number

six. He does not object to any of the other felony conviction information. The

Defendant argues that the trial court incorrectly entered into evidence State’s exhibit

six and incorrectly considered the felony information contained therein as the bill of

information contained in the exhibit did not possess the Defendant’s fingerprints. We

find that even without this felony conviction, the Defendant is still classified as at

least a fourth felony offender.

In State v. Payton, 02-2899, (La. 3/15/02), 810 So.2d 1127, 1130-31, the

supreme court held:

“To obtain a multiple offender conviction, the State is required to
establish both the prior felony conviction and that the defendant is the
same person convicted of that felony.” State v. Neville, 96-0137
(La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39, writ denied, 97-1637

9

(La.12/12/97), 704 So.2d 1180 (citations omitted). In attempting to do
so, the State may present: (1) testimony from witnesses; (2) expert
opinion regarding the fingerprints of the defendant when compared with
those in the prior record; (3) photographs in the duly authenticated
record; or (4) evidence of identical drivers license number, sex, race
and date of birth. See, e.g., State v. Westbrook, [392 So.2d 1043
(La.1980)]; see also State v. Curtis, 338 So.2d 662, 664 (La.1976).

At the habitual offender hearing, the State offered Ray Keith Delcomyn as an

expert in fingerprint analysis. Mr. Delcomyn stated that he obtained fingerprints of

the Defendant in court on the morning of the habitual offender hearing. Under oath,

Mr. Delcomyn testified that he compared the fingerprints of the Defendant taken in

court that morning to the fingerprints located on the bills of information that the State

entered into evidence. Mr. Delcomyn stated that in his expert opinion the

Defendant’s fingerprints matched the fingerprints on all of the bills of information.

Accordingly, we find that the State proved that the Defendant was convicted

of simple burglary on April 23, 1990; purse snatching on July 8, 1991; simple

burglary on July 8, 19912 ; armed robbery on January 11, 1994; unauthorized entry

of an inhabited dwelling on December 7, 2001; theft of goods between $100 and $500

on December 4, 2001; and the present offenses of possession of cocaine and simple

escape.

We find that the State proved six felony offenses in addition to the offense the

Defendant disputes and the present offenses. The trial court did not err in finding the

Defendant to be a fourth felony offender. Therefore, this assignment of error is

without merit.

2
We find that pursuant to State v. Johnson, 884 So,2d 568, which overruled
Mims, because the purse snatching charge arose on January 30, 1991, and the simple
burglary charge arose on April 4, 1991, each conviction can be used as a separate
offense to habitualize the Defendant even though he was convicted of both offenses
on the same day.

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CONCLUSION

This court affirms the Defendant’s convictions. The Defendant’s sentence,

however, is vacated and the case remanded for a determination as to whether

enhancement has been sought on one or both offenses.

AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR
RESENTENCING.

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