STATE OF LOUISIANA VERSUS JENNIFER RENEE ROBERSON A/K/A JENNIFER ROBERTSON A/K/A JENNIFER THOMAS

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1206

STATE OF LOUISIANA

VERSUS

JENNIFER RENEE ROBERSON
A/K/A JENNIFER ROBERTSON
A/K/A JENNIFER THOMAS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 275397
HONORABLE BERT DEXTER RYLAND, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Elizabeth A. Pickett,
Judges.

CONVICTION VACATED AND REMANDED.

James Edward Beal
Louisiana Appellate Project
P. O. Box 307
Jonesboro, LA 71251-0307
(318) 259-2391
Counsel for Defendant-Appellant:
Jennifer Renee Roberson

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

Charles Edward Johnson
Assistant District Attorney - Ninth Judicial District Court
6817 Lower Third Street
Alexandria, LA 71302
Counsel for State-Appellee:
State of Louisiana

Pickett, Judge.

FACTS

On August 31, 2004, the defendant entered a drug store in Alexandria, placed

some deodorant in a plastic bag, and then walked out of the store’s front door without

paying for the deodorant. Two store employees tried to stop her from leaving, but she

allegedly produced a box-cutter and cursed at them. They desisted, and the defendant

left with the deodorant. The store manager contacted police, and the defendant was

arrested following an investigation.

On October 20, 2004, the state filed a bill of information charging the

defendant, Jennifer Renee Roberson, a.k.a. Jennifer Robertson, a.k.a. Jennifer

Thomas, with armed robbery, a violation of La.R.S. 14:64. On April 7, 2005, a jury

found the defendant guilty of a lesser-included charge, first degree robbery, a

violation of La.R.S. 14:64.1.

On April 15, 2005, the court sentenced her to twenty years at hard labor,

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

The defendant now appeals her conviction, assigning two errors.

ASSIGNMENTS OF ERRORS

The defendant asserts two assignments of error:

1. The evidence is insufficient to convict the defendant of first degree
robbery.

2. Counsel for defendant was ineffective in this jury trial.

ASSIGNMENT OF ERROR NO. 1

In her first assignment, the defendant argues that the evidence adduced at trial

was insufficient to support her conviction for first degree robbery. Claims of

insufficiency of trial evidence are analyzed under a long-established standard, as this

court has explained:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (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 witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). 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.

The defendant does not attack the evidence per se. Rather, she questions the

legal standard applied to the evidence. The defendant acknowledges taking the

deodorant, and assumes the jury found that she had used a box-cutter to retain

possession of the deodorant when the store employees approached her. Further, she

acknowledges that under State v. Myers, 92-3263 (La. 7/1/93), 620 So.2d 1160, the

use of force to retain a stolen item supports a conviction for first degree robbery. She

argues, however, that this rule is rooted in common law and is incongruent with

Louisiana’s civilian tradition. She also contends the rule is incongruent with La.R.S.

14:64.1, which states in pertinent part:

First degree 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, when the offender leads the
victim to reasonably believe he is armed with a dangerous weapon.

The defendant argues the statute requires that the intimidation or use of force

must facilitate the initial taking of an item, not the retention of the item. In support,

she cites a case from Tennessee’s state supreme court.

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As the Louisiana Supreme Court has already spoken on this issue, in a case

which defendant acknowledges to be on point, that controlling law has been

established and this court will not revisit the question. The Myers holding has set

forth the interpretation of La.R.S. 14:64.1 that is to be used by Louisiana courts, and

Tennessee jurisprudence has no bearing on the case. This assignment of error lacks

merit.

ASSIGNMENT OF ERROR NO. 2

In her second assignment of error, the defendant asserts her trial counsel was

ineffective. The defendant argues her counsel was ineffective for three reasons: 1)

for failing to object to the admissibility of a pre-trial letter in which she offered to

plead guilty to a lessor charge; 2) for failing to object to an apparent misquote of the

testimony by the state; and 3) for failing to object to the state’s cross-examination of

her regarding her prior arrests and convictions.

This court has previously explained the proper analysis for ineffective

assistance claims:

A defendant is entitled to effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States
Constitution and Article I, § 13 of the Louisiana
Constitution of 1974. This right is fundamental to our
system of justice and a cornerstone in assuring the
defendants receive a fair trial not unduly prejudiced by
their counsel’s ineffective assistance. “Effective counsel”
has been defined to mean “not errorless counsel”, and not
counsel judged ineffective by hindsight, but counsel likely
to render reasonably effective assistance State v. Ratcliff, 416 So. 2d 528, 531 (La. 1982)(quoting United States v.
Fruge, 495 F. 2d 557, 558 (5 Cir. 1974)). The claim is
assessed by the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct.2052, 80 L. Ed. 2d
674 (1984); Id. To prevent, the defendant must not only
show that counsel’s performance was deficient, but also
that a reasonable probability existed that he was prejudiced
by the deficiency. Brooks, 661 So.2d 1333. “A reasonable

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probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694,
104 S.Ct. At 2068.

State v. Antoine, 00-564, p. 6 (La.App. 3 Cir. 12/6/00), 774 So.2d 353, 357.

Regarding her first argument, the defendant notes the following colloquy from

her trial:

MR. JOHNSON [Assistant District Attorney]: (continuing)

. . . Ms. Roberson, I’m going to show you what I’m going to

mark as State’s exhibit - what number am I on? Five? Do you

recognize this letter?

A Uh-huh. (Yes)

Q What is it?

A A letter I wrote you.

Q That’s a letter you wrote to me, correct?

A Yes. Yeah.

Q That’s your handwriting, correct?

A Yeah.

Q All right. Did you tell me in this letter, please drop the armed
robbery charge to simple robbery and I’ll take a plea bargain for
five years?

A Yes, I did say that. Yes, I did. Yes, I did say that.

BY MR. JOHNSON:

Judge, I’d offer State’s Five.

BY MR. KUTCH [Defense counsel]:

I have no basis for objection, Your Honor.

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BY THE COURT:

Admitted.

(THERE UPON THE STATE’S EXHIBIT S-5 WAS
MARKED FOR IDENTIFICATION AND RECEIVED
INTO EVIDENCE)

La. Code Evid.art. 410 states, in pertinent part:

A. General rule. Except as otherwise provided in this Article, evidence
of the following is not, in any civil or criminal proceeding, admissible
against the party who made the plea or was a participant in the plea
discussions:

....

(3) Any statement made in the course of any court proceeding
concerning either of the foregoing pleas, or any plea discussions with an
attorney for or other representative of the prosecuting authority
regarding either of the foregoing pleas; or

(4) Any statement made in the course of plea discussions with an
attorney for or other representative of the prosecuting authority which
do not result in a plea of guilty or which result in a plea of guilty later
withdrawn or set aside.

The letter written by the defendant to the prosecutor, and admitted as Exhibit

S-5, was clearly inadmissible. Defense counsel not only failed to object to the

questions asked the defendant regarding the letter, and the admission of the letter into

evidence, but specifically stated “I have no basis for objection, Your Honor.” This

suggests that defense counsel was unaware of the provisions of La.Code Evid. art.

410 and that the letter and any questions pertaining to its contents were inadmissable.

Under the first part of the two-part test enunciated in Strickland, the defendant

must show that counsel’s performance was deficient. We find that defense counsel’s

performance was in fact deficient and the defendant has satisfied the first part of the

Strickland test. In the second part of the Strickland test, the defendant must show that

a reasonable probability existed that she was prejudiced by the deficiency.

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After reviewing the evidence as a whole, we conclude that there is at least a

reasonable probability that the defendant was prejudiced by the admission of the

clearly inadmissible material to which defense counsel said he had no basis for

objection. There was never any question that the defendant stole the deodorant from

the store and, in fact, she admitted it when she testified. She consistently denied

having possession of, or brandishing at the store employees, the box cutter she

allegedly used in the commission of the crime. The jury was, therefore, required to

make a credibility determination regarding the testimony of the store employees and

the defendant to resolve whether the state proved the defendant possessed and used

the box cutter. The inadmissible evidence presented to the jury of the defendant’s

willingness to enter a plea of guilty to the offense of simple robbery and accept a five-

year sentence was clearly prejudicial toward the defendant and the probability is high

that this impacted the jury’s credibility determination. The state, by questioning the

defendant as to the contents of the plea offer, and offering the written letter into

evidence, violated a clear and direct statutory prohibition. Defense counsel failed to

object and the result was to improperly place highly prejudicial and inadmissible

information before the jury.

We find the defendant was denied effective assistance of counsel as guaranteed

by the Sixth Amendment to the United States Constitution and Article I, § 13 of the

Louisiana Constitution of 1974. Accordingly, the defendant’s conviction is vacated

and this matter is remanded to the trial court.

CONVICTION VACATED AND REMANDED.

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