State of Louisiana v. Billy Ray Robinson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-633

STATE OF LOUISIANA

VERSUS

BILLY RAY ROBINSON

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT,
PARISH OF LASALLE, NO. 72,511,
HONORABLE J. P. MAUFFRAY, JR., DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

J. Reed Walters
District Attorney
Post Office Box 1940
Jena, Louisiana 71342
(318) 992-8282
Counsel for:
State of Louisiana

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, Louisiana 71112
(318) 746-7467
Counsel for Defendant/Appellant:
Billy Ray Robinson

SULLIVAN, Judge.

At approximately 12:15 p.m. on July 23, 2003, an armed man robbed

Homeland Bank in Jena, Louisiana. Following an investigation conducted by the

LaSalle Parish Sheriff’s Department, Billy Ray Robinson was arrested and indicted

for armed robbery, a violation of La.R.S. 14:64. After hearing evidence on June 30,

2004, a jury found Defendant guilty as charged. Defendant filed a Motion for New

Trial, which was denied by the trial court.

On February 8, 2005, Defendant was sentenced to serve forty years at hard

labor without benefit of probation, parole, or suspension of sentence. Defense

counsel objected to the sentence as excessive and informed the court of his intent to

appeal. An appeal was granted on February 24, 2005.

Defendant appeals, asserting two assignments of errors: 1) insufficiency of the

evidence and 2) the sentence imposed is excessive.

Errors Patent

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

errors patent on the face of the record. No patent errors were found by our review of

the record.

Sufficiency of the Evidence

Defendant contends the evidence was insufficient to support the jury’s verdict,

arguing the evidence does not exclude the possibility that his brother, Eddie

Robinson, committed the robbery.

Standard of Review

When reviewing the sufficiency of the evidence, appellate courts are controlled

by the standard announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979). On appeal, courts must determine 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. Captville, 448 So.2d 676, 678 (La.1984). Where an essential element of a

crime is sought to be proven by circumstantial evidence, “it must exclude every

reasonable hypothesis of innocence.” La.R.S. 15:438.

[B]efore a trier of fact can decide the ultimate question of whether a
reasonable hypothesis of innocence exists in a criminal case based
crucially on circumstantial evidence, a number of preliminary findings
must be made. In addition to assessing the circumstantial evidence in
light of the direct evidence, and vice versa, the trier of fact must decide
what reasonable inferences may be drawn from the circumstantial
evidence, the manner in which competing inferences should be resolved,
reconciled or compromised[,] and the weight and effect to be given to
each permissible inference. From facts found from direct evidence and
inferred from circumstantial evidence, the trier of fact should proceed,
keeping in mind the relative strength and weakness of each inference
and finding, to decide the ultimate question of whether this body of
preliminary facts excludes every reasonable hypothesis of innocence.

State v. Chism, 436 So.2d 464, 469 (La.1983).

The fact finder is given much discretion in making determinations of credibility

and evidence, and appellate courts are not required to determine whether witnesses

are believable or the evidence establishes guilt beyond a reasonable doubt. State v.

Mussall, 523 So.2d 1305 (La.1988). Appellate courts will “impinge[] upon ‘jury’

discretion only to the extent necessary to guarantee the fundamental protection of due

process of law.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

The Evidence

Laura Willis, one of the two bank tellers on duty when the robbery occurred,

described the robber as a black male with white beads in the bottom of his hair. She

stated he was five foot six inches to five foot seven inches tall and wore a white polo-

type shirt with a pink ring around the collar and jeans. Ms. Willis could not

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positively identify the robber because he wore a stocking pulled down over his head

and his face just below his nose.

Jana Hudson, Ms. Willis’ co-worker, described the robber as a black male with

a stocky build and thick neck who had braids in his hair with beads at the ends. She

testified that the robber wore a white polo-style shirt with a pink stripe on the collar,

jeans, tennis shoes, and a black mask. Ms. Hudson also could not positively identify

the robber because of the mask he wore.

Jimmy Arbogast, an investigator with the LaSalle Parish Sheriff’s Office,

investigated the robbery. He interviewed Ms. Willis and Ms. Hudson to determine

the amount of money taken and to get a description of the robber. The bank provided

him a list of “bait money” taken in the robbery. Bait money is a strap of five hundred

dollars of twenty dollar bills kept in each teller’s drawer. The bills are photocopied,

and the serial number of each bill is recorded, so the money can be tracked if the bank

is robbed.

Amanda Smith, accounting manager at the Jena Wal-Mart, testified that on

July 24, 2003, she was alerted by a co-employee that someone matching the

description of the bank robber was in Wal-Mart. Ms. Smith went to the location

identified by her co-employee and followed Eddie Robinson, Defendant’s brother,

around the store. She notified the LaSalle Parish Sheriff’s Department that the bank

robber might be present in the store.

Mr. Arbogast went to Wal-Mart. He matched the serial numbers on money

Eddie spent at Wal-Mart to serial numbers of some of the bait money taken from

Homeland Bank. Mr. Arbogast was also given three bills spent on July 23, 2003, that

matched the serial numbers of the bait money. According to Ms. Smith, the three

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bills spent on July 23, 2003, were taken from one of the store’s front registers. There

was no evidence to show what time the money was spent on July 23, 2003.

Eddie was detained and questioned by police. Subsequently, police searched

the residence where he was living. Photographs of Defendant and Eddie, along with

a Wal-Mart receipt dated July 23, 2003, at 1:41 p.m., were seized from the residence.

Mr. Arbogast testified that as a result of the photographs, Defendant was added as a

suspect because Defendant’s hair in the photograph taken from the residence matched

the robber’s hair in photographs taken from bank cameras during the robbery. The

receipt was introduced as evidence at the trial, but the photographs were not.

Eddie testified that he was at home on July 23, 2003, between 12:00 and 1:00

p.m. and that he went to the neighbor’s house between 11:30 a.m. and 12:00 p.m. to

borrow a hammer. He later agreed that he went to the neighbor’s house between

11:00 and 11:30 a.m. and testified that he was there for fifteen to twenty minutes.

Eddie further testified that he paid for the purchase he made on July 24, 2003, with

money Defendant had given him the day before “around twelve.” He testified that he

had been convicted of armed robbery in 1988 but denied being involved in the

robbery of the Homeland Bank.

Eddie lived with his mother and her boyfriend, Leslie Wilson. Mr. Wilson

testified that he went to the Bank of Jena on July 23, 2003, to cash his social security

check and returned home at approximately 10:00 a.m. He further testified that Eddie

was home when he returned and that Eddie did not leave home all day, except to

borrow a hammer from the neighbor.

Mr. Wilson testified that he contacted Defendant “around twelve” on July 23,

2003, and asked Defendant to take him to Wal-Mart. Mr. Wilson testified that he

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made some purchases and that Defendant got a photograph enlarged while they were

at Wal-Mart. Mr. Wilson did not recall what time he talked to Defendant or what

time Defendant picked him up, testifying “I have no direct recollection of the

particular time. But, we left from my residence to go to Wal-Mart between twelve

and I say, one o’clock.”

Cheryl Breland, the electronics department manager for Wal-Mart, testified that

she was working in the electronics department on July 23, 2003, and assisted a black

male enlarging a photograph. While assisting the man, she indicated to him that she

recognized him from somewhere, and he explained that she recognized him from

Popeye’s where he worked. Ms. Breland identified Defendant as the man she

assisted. She testified that he wore black pants, a dingy white shirt, and black shoes,

one of which had a hole in it. She further testified that he had dread locks in his hair

with “white on the ends of ’em.” Ms. Breland stated that Defendant bought a C.D.,

a calendar, a pair of shoes, two photograph reprints, and possibly a shirt and that he

paid for his purchase with twenty dollar bills. She further testified that shortly after

she assisted Defendant, Ms. Smith pulled the twenty dollar bills he gave her from her

register. Ms. Breland testified that the purchase reflected on the receipt seized from

Eddie’s residence was not made at her register.

Mr. Arbogast interviewed Defendant after his arrest. Defendant denied going

to Wal-Mart on July 23, 2003, and spending money there; he was unable to say where

he was at the time of the robbery. He told Mr. Arbogast that he got the money he had

from his employer. Mr. Arbogast did not verify this information. Mr. Arbogast

searched Defendant’s residence but did not find any evidence linking Defendant to

the robbery.

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Michael Marcum, Jr., a loss prevention employee of Wal-Mart, reviewed the

Jena store security videotapes of July 23 and 24, 2003, and compiled relevant

portions on one videotape. He reviewed the tapes based on logs maintained by the

person in charge of changing the tapes. Mr. Marcum explained the process he

followed to determine the date and time of the excerpts depicted on the tape he

prepared. Mr. Marcum testified that a portion of the tape, which depicted a black

male in the store, was taped on July 23, 2003, at approximately 1:13 or 1:14 p.m. He

further testified that a portion of the videotape, which shows a black male making a

purchase, was from July 24, 2003. The videotape was shown to the jury without any

testimony identifying the men depicted on the videotape.

The State also introduced a series of nine photographs of the bank robbery,

which depict a black male with white beads at the back of his hair robbing Homeland

Bank. The pictures are not clear and would not allow the jury to compare the person

depicted in those photographs to Defendant.

Defendant points out that neither teller could identify the person who robbed

the Homeland Bank and that the only distinguishing characteristic cited by both

tellers was the hairstyle of the offender. He contends there was no evidence presented

regarding Eddie Robinson’s hairstyle and there was no evidence to “contradict the

hypothesis that Eddie wore ‘corn rolls’ as described by the tellers.” He also asserts

the possibility that another person committed the crime, which hypothesis is bolstered

by the fact that a Wal-Mart employee believed Eddie might have been the robber

based on the description provided by police. Defendant points out that the only

evidence from the robbery was located at Eddie’s residence. Additionally, he

observes that the bait money seized from Wal-Mart was not fingerprinted and that no

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witness connected him to the bait money seized at Wal-Mart. Lastly, he contends the

videotape played at trial did not conclusively establish the date and time of the

footage and was a compiled and edited copy of original tapes.

The State argues that the videotape from Wal-Mart shows Defendant entering

the store with corn rows in his hair. It points to Mr. Wilson’s testimony that

Defendant took him to Wal-Mart the day of the robbery and that they left his home

between 12:00 and 1:00 p.m. Further, it notes that Ms. Breland testified Defendant

spent money in Wal-Mart “which money was later identified as ‘bait money.’” The

State contends this purchase was made one to one and one-half hours after the

robbery. The State also contends that, based on Eddie’s and Mr. Wilson’s testimony,

Eddie was excluded as the robber. Moreover, Eddie testified that he got the money

he spent on July 24, 2003, from Defendant on July 23, 2003. The State asserts that

Eddie’s credibility was bolstered by Defendant’s denial to Mr. Arbogast that he went

to Wal-Mart on July 23, 2003, and spent money while there. The State additionally

cites the testimony of Ms. Breland, asserting that her description of the Defendant’s

shirt matched that given by the bank tellers.

The jury could have reasonably inferred from the evidence that the State proved

beyond a reasonable doubt that Defendant was the robber. The jury had the

opportunity to judge Mr. Wilson and Eddie’s credibility with regard to Eddie’s

whereabouts at the time the bank was robbed. Importantly, it had the opportunity to

hear Eddie’s testimony that he got the bait money he spent at Wal-Mart from

Defendant the day of the robbery. The jury also had the opportunity to view Wal-

Mart’s security tape excerpts prepared by Mr. Marcum and determine whether

Defendant was at Wal-Mart the day of the robbery or not.

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Defendant argues the tape should not have been allowed into evidence because

the dates and times of the excerpts and the method of preparation of the tape did not

assure the accuracy of Mr. Marcum’s testimony or the tapes. The trial court

considered and accepted Mr. Marcum’s explanation of how he determined the date

and time of the excerpts included on the videotape he prepared. We find no error

with the trial court’s decision to allow the tape into evidence. Defendant’s conviction

is affirmed.

Excessive Sentence

Defendant contends his sentence of forty years at hard labor, without benefit

of probation, parole, or suspension of sentence is an excessive sentence. Armed

robbery is punishable by imprisonment at hard labor for not less than ten years nor

more than ninety-nine years, without benefit of parole, probation, or suspension of

sentence. La.R.S. 14:64.

In State v. Cook, 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959, cert. denied,

519 U.S. 1043, 117 S.Ct. 615 (1996), the supreme court held that when a defendant

claims a sentence is excessive “[t]he only relevant question on review . . . [is]

‘whether the trial court abused its broad sentencing discretion, not whether another

sentence might have been more appropriate.’ State v. Humphrey, 445 So.2d 1155,

1165 (La.1984).”

At sentencing, the trial court observed that Defendant had five prior felonies

and discussed several factors outlined in La.Code Crim.P. art. 894.1. Defendant

contends the trial court should have considered that none of his prior felonies were

violent crimes and that he was employed at the time of this robbery. He urges that it

was error for the trial court not to consider his personal history, that his sentence is

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grossly disproportionate to the severity of the crime, and that he is not the worst

offender. He claims he should not have to spend what will likely be the rest of his life

in jail.

In light of Defendant’s five prior felony convictions, we cannot say the trial

court abused its discretion in sentencing him to forty years for armed robbery of two

victims. This assignment lacks merit.

Disposition

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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