State of Louisiana v. Terrance Cotrell Robinson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-1424

STATE OF LOUISIANA

VERSUS

TERRANCE COTRELL ROBINSON

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 282,033
HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED.

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

Mark Owen Foster
P.O. Box 2057
Natchitoches, LA 71457-2057
(318) 572-5693
Counsel for Defendant Appellant:
Terrance Cotrell Robinson

EZELL, JUDGE.

On May 30, 2006, the Rapides Parish District Attorney’s Office filed a bill of

information charging Defendant, Terrance Robinson, with armed robbery, a violation

of La.R.S. 14:64, and aggravated burglary, a violation of La.R.S. 14:60. In the course

of pre-trial proceedings, Defendant complained about his appointed counsel. The

court appointed new counsel on January 8, 2007.

The parties selected a jury on March 20, 2007, but the court granted

Defendant’s motion for mistrial on March 21. A new jury was selected on May 16,

2007; it heard evidence and found Defendant guilty on May 17.

On June 15, 2007, the trial court sentenced Defendant to twenty-five years at

hard labor for armed robbery and ten years at hard labor for aggravated burglary. The

court ordered that the sentences run consecutively.

Defendant now appeals his convictions and sentences, assigning four errors.

FACTS

On the night of February 28, 2006, two men burst into the home of Terrell

Bailey, who was at home with her teenaged son, her two-month-old grandson, and a

friend, Taranieka Williams. One man was armed with a gun, and had a bandana

covering the lower half of his face. The other man wore a hat but no mask and was

armed with a knife. The victims subsequently identified the non-masked man as

Defendant.

The robbers forced Ms. Bailey to give them cash from her purse and took a

pistol that was under a mattress in one of the bedrooms. They forced the victims to

lay down in one room and made Ms. Bailey call her boyfriend, Phillip Alexander.

When he arrived, they overpowered and robbed him. At some point, Defendant

armed himself with a handgun; after the incident, Mr. Alexander realized that a

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handgun he kept in the house was missing. The robbers also left with Ms. Bailey’s

car keys; the victims heard a car honk, and when they looked outside, the car was

gone.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, there is one

potential error patent.

Louisiana Code of Criminal Procedure Article 853 provides that a motion for

new trial must be filed and disposed of before sentencing. The minutes of the

sentencing proceeding held in June 2007, indicate that prior to sentence being

imposed the defense made an oral motion for new trial to be followed up with a

written motion. Then, the trial court sentenced the Defendant. Because of the

possible error patent on the face of the court minutes, we reviewed the transcript of

sentencing. The transcript indicates that before the sentence was imposed, the

following pertinent exchange occurred:

BY MR. WILLIAMS:

Excuse me. Excuse me, Your Honor. Before you do the
sentencing, I’d like to make the oral motion right now for a new trial,
based on the grounds of insufficient evidence, and substitute that with
the written motion by Tuesday of next week.

BY THE COURT:

You may do so, sir.

BY MR. WILLIAMS:

Thank you, Your Honor.

BY THE COURT:

But you have no objection to my proceeding at this time with this
sentencing?

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BY MR. WILLIAMS:

No objection to your proceeding at this time, sir.

BY MR. SHANNON:

You -- okay.

(THE DEFENDANT CONFERRED WITH DEFENSE COUNSEL.)

BY THE COURT:

Further, as I was stating, I ordered a Pre-Sentence Investigation,
and I’ve been duly supplied with same. And, Mr. Robinson, the facts of
the case speak for themselves. The jury found you guilty of these two
offenses, and I have no choice but to sentence you as follows. Are you
ready for sentencing?

BY THE DEFENDANT:

Yes, sir.

The record indicates that in August 2007, the Defendant filed a written pro se

motion for new trial asserting insufficient evidence, that the trial court erred in

sustaining two objections regarding jury selection, and ineffective assistance of

counsel. The trial court denied the motion without conducting a hearing.

This court finds since the initial motion was an oral motion, no error should be

recognized. Louisiana Code of Criminal Procedure Article 852 provides that a

motion for a new trial shall be in writing. In State v. Lewis, 99-3150 (La.App. 4 Cir.

2/14/01), 781 So.2d 650, writ denied, 01-949 (La. 12/14/01), 804 So.2d 629, on error

patent review, the court explained that at sentencing the defense counsel orally moved

for a new trial, and the court denied the motion immediately after the defendant was

sentenced in contradiction to La.Code Crim.P. art. 853. However, the court found

that since La.Code Crim.P. art. 852 required a motion for new trial to be in writing

and the only motion was made orally, the trial court did not err in failing to rule on

the motion. Id.

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As noted above, a motion for new trial must be filed and disposed of prior to

sentencing. La.Code Crim.P. art. 853. When the motion has not been ruled upon

prior to sentencing and is still pending at the time of appeal, this court has vacated the

sentence and remanded the case for a ruling on the motion and, if necessary,

resentencing. State v. Townsend, 94-658 (La.App. 3 Cir. 12/7/94), 647 So.2d 535.

See also, State v. Randolph, 409 So.2d 554 (La.1981); El-Mumit v. Twenty-First

Judicial District Court, 500 So.2d 414 (La.1987).

Unlike in Townsend, in this case, the motion was ruled upon after sentence

was imposed but prior to appeal. In State v. Brooks, 00-106 (La.App. 5 Cir. 9/26/00),

769 So.2d 1242, 1246 (alteration in original)(footnote omitted), the fifth circuit found

remand was not necessary in a similar circumstance:

The record further reflects that Brooks’ motion for new trial was
ruled upon immediately after she had been sentenced. LSA-C.Cr.P. art.
853 provides in pertinent part that “[a] motion for a new trial must be
filed and disposed of before sentence.” This Court has held that
sentencing prior to a ruling on these motions must be set aside and the
case remanded for a ruling on the motions and then re-sentencing. In
this case, there was a ruling on the motion for new trial after sentencing
and there is no need to remand for a ruling on that motion. Further,
Brooks noted that she had planned on waiving her 24-hour sentencing
delay between a ruling on the motion for new trial and sentencing. The
timing of the trial court, although incorrect, constitutes harmless error.
The conviction and sentence must be affirmed.

As in Brooks, this court finds that there is no need to remand for a ruling on the

motion as it was already ruled upon.1 Accordingly, the court finds that there is no

need to remand for resentencing in the present case.

1
In State v. Brown, an unpublished opinion bearing docket number 95-472
(La.App. 3 Cir. 12/6/1995), this court found that the trial court’s failure to dispose of
the motion for new trial prior to imposition of sentence was harmless when the trial
court had ruled upon the motion, although untimely.

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ASSIGNMENT OF ERROR NUMBER FOUR

The court will address this assignment of error first, because it attacks the

sufficiency of the evidence adduced at trial. A finding that the evidence was

insufficient would necessitate reversal of one or both of Defendant’s convictions, and

thus, render the other assignments of error moot. State v. Hearold, 603 So.2d 731

(La. 1992).

The analysis for such claims is well-established:

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.

As noted earlier, one of Defendant’s convictions was for armed robbery, which

is defined by La.R.S. 14:64(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.”

The State also charged Defendant in accordance with aggravated burglary as defined

by La.R.S. 14:60(2), which states: “[a]ggravated burglary is the unauthorized entering

of any inhabited dwelling, or of any structure, water craft, or movable where a person

is present, with the intent to commit a felony or any theft therein, if the offender . . .

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[a]fter entering arms himself with a dangerous weapon[.]”

Defendant does not argue that an armed robbery or aggravated burglary did not

occur; rather, he claims that he was not one of the offenders. It is well-settled that

since identity was the sole issue, the State was required to nullify any reasonable

probability of misidentification. See, e.g. State v. Hughes, 05-992 (La. 11/29/06),

943 So.2d 1047.

The three adult victims, Ms. Bailey, Mr. Alexander, and Ms. Williams, testified

at trial. The female witnesses stated that one of the robbers did not wear a mask. Ms.

Williams recognized his face but did not know his name. Ms. Bailey testified

similarly and gave a similar account to police. Ms. Williams noted that when the

robbers came in she covered her head with a jacket. However, she peeked out

occasionally, and realized that Defendant’s face was familiar. Mr. Alexander could

not identify either of the robbers, but identified a gun seized from Defendant’s

waistband at his arrest as similar to a gun Mr. Alexander owned, which was taken

during the robbery. Ms. Bailey testified that she saw Defendant’s accomplice take

Mr. Alexander’s gun from underneath a mattress.

Ms. Williams testified that the day after the robbery, she went to a

neighborhood store where she saw the Defendant. She described him to the owner,

who told her Defendant’s name. She then relayed his name to Ms. Bailey. Ms.

Bailey testified that a day or two after the robbery, she picked up a friend at the local

bus station. As they were driving, the friend saw Defendant and pointed him out to

Ms. Bailey. Also, Ms. Bailey found out Defendant’s name from other people in the

neighborhood. According to Detective Ronnie Howard, Ms. Bailey and Ms. Williams

each identified Defendant in separate photographic line-ups.

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We observe that there is a potential problem with Mr. Alexander’s credibility.

Appellate counsel argues, “[t]he gun Mr. Robinson allegedly stolen [sic] was not the

brand he was carrying [when arrested].” Although Mr. Alexander stated that his

weapon was a “Colt 45,” he described it as having an “emblem of a bull or a Taurus

on it; the sign of a Taurus.” This court has obtained the exhibit; it bears a symbol of

a rampant colt, in relief, on each handgrip. Another portion of the weapon bears the

same symbol, engraved. The court observed the exhibit and submits that the symbols

do not look like bulls. Mr. Alexander viewed the weapon at trial and testified that

it looked like the one taken from his house. He did not positively identify it as his

weapon. He did not report it stolen until approximately one month before trial.

Defendant and a friend, Danmon O’Connor, each testified that the gun introduced as

S-13 belonged to the two of them.

The discrepancy regarding the weapon is not fatal to the State’s case, since Ms.

Bailey and Ms. Williams both identified Defendant as the offender who forcibly

entered the house with an accomplice, held them at knife point, and took items,

including Ms. Bailey’s car and cash, without the victims’ permission. According to

their testimonies, Defendant armed himself with a firearm at some point, because he

had one when he and his accomplice left. Ms. Bailey saw his accomplice take the

weapon. She, Ms. Williams, and Mr. Alexander all testified that before the robbery

there was a handgun in the house, and that after the robbery it was missing. Officer

Jason Mouliere of the Alexandria Police Department testified that the victims

identified a knife at the scene as having been used in the offense. Also, one of the

female victims told Officer Mouliere that she had seen the offenders in the area, but

did not know their names.

Neither of the female victims could describe the gun; Mr. Alexander described

it as discussed earlier. The State’s examination questions suggested that Mr.

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Alexander’s pistol was the pistol found in Defendant’s waistband when he was

arrested. However, such an identification was not necessary for the conviction.2 The

jury could reasonably have chosen to believe the identifications of Defendant made

by Ms. Bailey and Ms. Williams. Also, it would not have been unreasonable for the

jury to credit the women’s testimonies that they saw Defendant leave the crime scene

with a weapon, and that Mr. Alexander’s weapon was missing after the robbery.

For these reasons, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment, Defendant argues that the trial court did not

appropriately consider his request to represent himself. In his brief, Defendant

combines this assignment of error with his second one, devoting most of his argument

to the latter. However, he gives the self-representation issue a separate sub-heading

in his brief. We note that a hearing on the matter was held on December 18, 2006.

At that time, Defendant twice explicitly disclaimed that he had filed such a motion.

The court reconvened later on the same date, when Defendant’s original counsel was

present. During that portion of the hearing, Defendant asked, “Well – well, my – my

whole thing is, if I haven’t done nothing, what’s – what’s the reason for me to have

an attorney[?]” After the court pointed out the seriousness of the charges, Defendant

apparently acquiesced to being represented by his original counsel. When Defendant

appeared without counsel at a hearing January 8, 2007, he did not ask to represent

himself, and appeared agreeable to the appointment of new counsel. As Defendant

failed to request self-representation at either hearing on the matter, and acquiesced

to being represented by an attorney, this assignment lacks merit.

2
The State did not emphasize the gun in its close, and it is not clear whether the
gun was presented to the jury for viewing.

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ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that his original counsel

was ineffective. The analysis for such a claim is well-settled:

“Initially we note that ineffective assistance of counsel claims are
usually addressed in post-conviction proceedings, rather than on direct
appeal.” State v. Deruise, 1998-0541 p. 35 (La.4/3/01), 802 So.2d 1224,
1247-1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208
(2001). The post-conviction proceeding allows the trial court to conduct
a full evidentiary hearing, if one is warranted. State v. Howard,
1998-0064 p. 15 (La.4/23/99), 751 So.2d 783, 802, cert. denied, 528
U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). Where the record,
however, contains evidence sufficient to decide the issue, and the issue
is raised on appeal by an assignment of error, the issue may be
considered in the interest of judicial economy. State v. Smith,
1998-1417 (La.6/29/01), 793 So.2d 1199 (Appendix, p. 10), cert.
denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002); State
v. Ratcliff, 416 So.2d 528 (La.1982).

Under the standard for ineffective assistance of counsel set out in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), adopted by this court in State v. Washington, 491 So.2d 1337,
1339 (La.1986), a reviewing court must reverse a conviction if the
defendant establishes: (1) that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional
norms; and (2) counsel’s inadequate performance prejudiced defendant
to the extent that the trial was rendered unfair and the verdict suspect.

State v. Leger, 05-11, p. 44 (La. 7/10/06) 936 So.2d 108, 142-3, cert. denied, __ U.S.

__, 127 S.Ct. 1279 (2007).

The present record is sufficient to address the bulk of this assignment. First,

as the State points out, the court relieved Defendant’s original counsel and appointed

new counsel on January 8, 2007. Defendant suggests that his original counsel’s

apparent inertia impinged upon his trial counsel’s effectiveness because the latter was

left with inadequate time to prepare for trial.

The record shows that the court appointed new counsel on January 8, 2007. On

February 5, counsel Blane Williams appeared with Defendant; he requested and

received a continuance. On March 19, the trial was again continued, but only to the

next day. On March 20, the parties began selecting a jury. Counsel moved for a

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mistrial on March 21, and the court granted it on the same date. Counsel appeared

in open court on May 14 and 15; there was a short continuance on each date, and the

parties began selecting a new jury on May 16. Thus, trial counsel had approximately

four months to prepare for trial.

The court has found no case on point, but observes that in the context of

denials of continuances, some jurisprudence suggests that approximately two months

is adequate to prepare for a felony trial. See, e.g., State v. Johnson, 96-950 (La.App.

4 Cir. 8/20/97), 706 So.2d 468, writ denied, 98-617 (La. 7/2/98), 724 So.2d 203, cert.

denied, 525 U.S. 1152, 119 S.C.t 1054 (1999), and State v. Wilson 96-251 (La.App.

5 Cir. 10/1/96), 683 So.2d 775.

More specifically, Defendant argues that his original counsel’s ineffectiveness

interfered with the preservation of evidence for trial. Having conducted a Jackson

review, the court finds the evidentiary inconsistencies that Defendant alleges were

apparent to the jury. Defendant also alleges that his original counsel did not file

discovery. However, the record indicates that his original counsel obtained open-file

discovery. Thus, this portion of his argument lacks merit.

Defendant also argues that his original counsel failed to gather sufficient facts

regarding Mr. Alexander’s pistol in advance of trial. As discussed earlier, the

discrepancy between Mr. Alexander’s description of the weapon, and its actual

markings was before the jury, as was his testimony that he did not report the weapon

stolen until approximately one month before trial. Without reference to the first

prong of Strickland, Defendant has clearly failed to meet the second prong, as he has

not demonstrated prejudice. Therefore, this portion of his argument lacks merit.

Defendant also argues that his original counsel failed to help him establish his

alibi defense. However, he had an alibi witness testify at trial, and he fails to specify

how his case was prejudiced, considering that his second counsel had approximately

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four months to prepare for trial.

Under another sub-heading, Defendant contends that both his counsel should

have actively sought to suppress evidence, including the photo identifications made

by two of the victims. However, his argument rests upon the faulty assertion that the

“the victims originally did not know anything about the robbers.”

As noted earlier, in the Jackson review, Ms. Bailey and Ms. Williams did not

know Defendant’s name at the time of the robbery, but they did recognize his face.

Defendant does not offer any other reasons why the photo identifications might be

faulty, and does not specify what other evidence should have been suppressed. Thus,

this portion of the assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues that the trial court erred by

failing to articulate the factors it used in formulating the sentence, and in determining

the sentences should run consecutively.

This court observes that Defendant did not object to the sentences and did not

file a motion to reconsider sentence. Although he cites jurisprudence regarding

excessive sentences, he does not argue that his sentences are excessive in length.

Therefore, his claim regarding La.Code Crim.P. art. 894.1 has not been preserved for

review. La.Code Crim.P. art. 881.1.

Defendant also argues that the trial court erred by failing to sufficiently explain

why it ordered that the sentences run consecutively. However, this court finds this

argument should not be considered, for the reasons noted in the previous paragraph.

CONCLUSION

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

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