State of Louisiana v. Jimmy L. Bartie

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-673

STATE OF LOUISIANA

VERSUS

JIMMY L. BARTIE

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22315-08
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

REMANDED FOR DISPOSITION OF ATTEMPTED AGGRAVATED
KIDNAPPING CHARGE.
CONVICTION AND SENTENCE FOR AGGRAVATED KIDNAPPING
VACATED; CONVICTION FOR SECOND DEGREE KIDNAPPING
ENTERED AND REMANDED FOR SENTENCING.
ALL OTHER CONVICTIONS AFFIRMED.
SENTENCES FOR ARMED ROBBERY WITH A FIREARM VACATED
AND REMANDED FOR RESENTENCING;
REMAINING SENTENCES AFFIRMED.

John Foster DeRosier
Fourteenth Judicial District Court District Attorney
Carla Sue Sigler
Karen C. McLellan
Assistant District Attorneys
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR STATE-APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2806
Monroe, LA 71207
(318) 855-6038
COUNSEL FOR DEFENDANT-APPELLANT:
Jimmy L. Bartie

Jimmy L. Bartie
Louisiana State Penitentiary
General Delivery
Angola, LA 70712
Pro Se

PICKETT, Judge.

FACTS

On the evening of October 27, 2008, and early morning of October 28, 2008,

the defendant and an accomplice committed a string of violent crimes. The first

victim was kidnapped at gunpoint and forced to drive the defendant and his

accomplice around town in his own vehicle. He was later forced into the trunk

where he rode around town until he was able to free himself and escape. Soon

thereafter, the second victim was robbed at gunpoint of his wallet. Next, the third

victim was driving down the road when she was struck from behind by the

defendant and his accomplice who were in the vehicle belonging to the first victim.

When she stopped to assess for damage to her vehicle, the defendant and his

accomplice held her at gunpoint. They attempted to force the victim into the trunk

but fled the scene to avoid detection by an oncoming car, taking the victim’s

vehicle and the vehicle belonging to the first victim. The fourth and last victim

was also struck from behind by the defendant and his accomplice who were driving

the vehicle belonging to the third victim. The victim was also held at gunpoint.

When he was instructed to get in the truck, he attempted to escape and was shot in

the back.

On November 13, 2008, the defendant was indicted by a grand jury as

follows:

Count 1: Armed robbery with a firearm, in violation of La.R.S.
14:64.3;

Count 2: Carjacking, in violation of La.R.S. 14:64.2;

Count 3: Aggravated kidnapping, in violation of La.R.S. 14:44;

Count 4: Armed robbery with a firearm, in violation of La.R.S.
14:64.3;

Count 5: Attempted first degree murder, in violation of La.R.S.
14:27 and 14:30;

Count 6: Armed robbery with a firearm, in violation of La.R.S.
14:64.3;

Count 7: Attempted aggravated kidnapping, in violation of La.R.S.
14:27 and 14:44; and

Count 8: Carjacking, in violation of La.R.S. 14:64.2.

Following a jury trial, the defendant was found guilty as charged in Counts

1, 2, 3, 4, 5, 6, and 8 on September 8, 2011.

On November 2, 2011, the defendant was sentenced as follows: aggravated

kidnapping - life imprisonment; attempted first degree murder - fifty years

―without benefit‖; two counts of carjacking - twenty years ―without benefit‖ on

each count, to run concurrently with each other and all other sentences; and three

counts of armed robbery - fifty years ―without benefit,‖ on each count, to run

consecutively to each other and all other sentences. The defendant did not object

to his sentences or file a motion to reconsider his sentences.

The defendant is now before this court on appeal, arguing that the evidence

adduced at trial was insufficient to support his convictions. The defendant also

contends that his sentences of life imprisonment plus a consecutive 150 years is

excessive under the facts and circumstance of the case.

ASSIGNMENTS OF ERROR

1. The evidence adduced at trial was insufficient to support findings of
guilt on the offenses for which Mr. Bartie was charged.

2. The sentence of life plus one hundred and fifty years, consecutive, is
excessive under the facts and circumstances of this case.

In his pro se brief to this court, the defendant argues the evidence is

insufficient to support the convictions.

2

ERRORS PATENT

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

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

we find several errors patent.

A verdict was not returned on count seven in the indictment, attempted

aggravated kidnapping. Louisiana Code of Criminal Procedure Article 819

provides: ―If there is more than one count in an indictment, the jury must find a

verdict as to each count, unless it cannot agree on a verdict as to a count.‖ In the

briefs submitted by the state and the defendant, the parties state, citing record page

twenty, that the state informed the trial court it was not going to trial on the charge

of attempted aggravated kidnapping. Page twenty of the record, which is a minute

entry of voir dire held on September 7, 2011, provides in pertinent part: ―The

Deputy Clerk informs the Court that Mr. Blake did not read out the charge of

Attempted Aggravated Kidnapping nor doe[s] the record reflect that that [sic]

charge has ever been dismissed. The Court questions Mr. Blake and Mr. Blake

states he is not going to trial on that charge.‖ The transcript of that proceeding

provides in pertinent part:

MR. BLAKE:

He’s charged with the following: Armed robbery with a
firearm, three counts; two counts of carjacking; aggravated
kidnapping, and attempted first-degree murder.

THE COURT:

Okay. And Mr. Shelton represents the defendant. Go ahead
and introduce yourself, Mr. Shelton.

MR. SHELTON:

Yes, I’m Robert Shelton. I’m counsel for the defendant, Mr.
Jimmy Bartie. This is Mr. Bartie, my client.

3

THE DEFENDANT:

Jimmy Bartie, and I appreciate that [sic] y’all hearing my case
today. Thank you.

THE COURT:

Okay. The clerk points out that there was a -- does it continue
on the second page, Mr. Blake? Was there another charge on the
second page?

MR. BLAKE:

No, sir, Your Honor. I think they just listed each count, but it’s
not another charge.

THE COURT:

Our indictment – unless they mentioned it. Well, on the
indictment page, it doesn’t say that. Come see, Mr. Blake and Mr.
Shelton.

COURT REPORTER:

Do y’all want this on the record?

THE COURT:

Off the record.

[Whereupon, a bench conference is held off the record; after which
proceedings resume in open courts as follows:]

THE COURT:

So, madam clerk, I’ll ask you to swear in this group of
prospective jurors.

In State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, writ

denied, 06-618 (La. 9/22/06), 937 So.2d 381, on error patent review, this court

recognized that seven of the counts charged in the bill of information had not been

properly disposed of citing La.Code Crim.P. art. 819. The record did not contain

an amended bill of information or a motion to sever the charges. This court

remanded the case for a proper disposition of the charges.

4

We find there has not been a proper disposition of the attempted aggravated

kidnapping charge. The record before this court does not indicate the bill was

amended to delete the charge, that the State nolle prossed the charge, or that the

state severed the charge. We are remanding to the trial court for a proper

disposition of the attempted aggravated kidnapping charge.

Next, this court finds an error patent regarding the sentencing.

The minute entry of sentencing provides in pertinent part:

As to the charge of Aggravated Kidnapping, the Court sentences the
defendant to Life in Prison. As to the charge of Attempted First
Degree Murder, the Court sentences the defendant to serve fifty (50)
years in the Department of Corrections, to be served without benefit
of probation, parole or suspension of sentence. As to the charges of
Car Jacking [sic] (2 counts), the Court sentences the defendant to
serve twenty (20) years in the Department of Corrections on each
charge to run concurrent with each other, and to be served without
benefit of probation, parole or suspension of sentence. As to the
charges of Armed Robbery (3 Counts), the Court sentences the
defendant to serve fifty (50) years in the Department of Corrections
on each charge to run consecutive to each other and consecutive to all
other charges. The Court orders all charges to run concurrent with
each other, with the exception of the Armed Robbery Charges.

We reviewed the sentencing transcript to determine if the court minutes

accurately reflect the transcript. The sentencing transcript provided in pertinent

part:

THE COURT:

Give me the range of sentencing that’s available to me on the
armed robbery with a firearm.

MR. BLAKE:

The available sentences, let’s see, are not less than ten nor more
than ninety-nine years, Your Honor. Also, you want the car jacking
[sic], too?

THE COURT:

I’ve got that, two to twenty.

5

MR. BLAKE:

Yes, two to twenty.

THE COURT:

And the aggravated kidnaping, I don’t have that, and the
attempted first degree, I don’t have that.

MR. BLAKE:

On the aggravated kidnaping you’re dealing with punished [sic]
by life imprisonment at hard labor without benefit of probation, parole,
or suspension of sentence.

THE COURT:

Okay.

MR. BLAKE:

And I think the attempted first degree murder, I think it’s up to
50, Your Honor.

THE COURT:

Up to?

MR. BLAKE:

Fifty, I think.

THE COURT:

Well, let’s make sure. Ten to fifty.

MR. BLAKE:

Ten to fifty, yeah.

....

THE COURT:

Okay. Then on the aggravated kidnaping [sic] I’m going to
sentence him to life, the maximum sentence. On the attempted first
degree murder I’m going to sentence him to fifty (50) years without
benefit. The car jacking [sic] I’m going to sentence him to the
maximum was there more than one count?

6

MR. BLAKE:

There was [sic] two counts, Judge.

THE COURT:

Two counts, to run concurrent, twenty (20) years, concurrent,
without benefit. On the armed robbery I’m going to sentence him to
fifty (50) years as a consecutive sentence to all other sentences,
without benefit. This was an incredibly chilling episode of chaos that
gripped the community for a couple of days, and so it has to be dealt
with accordingly.

....

THE COURT:

Three counts of armed robbery.

MR. BLAKE:

Yes, sir.

THE COURT:

That’s fifty (50) years on the armed robbery, on each,
consecutive, without benefit.

....

THE COURT:

Fifty (50) years consecutive on each armed robbery charge,
that’s fifty times three. We did the two car jackings [sic], that’s times
two. The aggravated kidnaping, that was just one count, correct?

....

THE COURT:

Okay. So it’s the maximum on everything but the armed
robbery, and that’s fifty (50), and it’s times three consecutive. Okay.
The only other thing that was the car jacking [sic], there were two of
those, that’s concurrent with everything else.

The trial court imposed indeterminate sentences for the armed robbery with

use of a firearm convictions. The state charged the defendant with armed robbery

with a firearm, citing La.R.S. 14:64.3. The jury convicted the defendant of armed

7

robbery with a firearm. At the sentencing hearing, the trial court asked the state,

―Give me the range of sentencing that’s available to me on the armed robbery with

a firearm.‖ The state responded, ―[N]ot less than ten nor more than ninety-nine

years, Your Honor.‖

Louisiana Revised Statutes 14:64 provides a penalty of ten to ninety-nine

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

Louisiana Revised Statutes 14:64.3(A) provides:

When the dangerous weapon used in the commission of the
crime of armed robbery is a firearm, the offender shall be imprisoned
at hard labor for an additional period of five years without benefit of
parole, probation, or suspension of sentence. The additional penalty
imposed pursuant to this Subsection shall be served consecutively to
the sentence imposed under the provisions of R.S. 14:64.

The state failed to inform the trial court of the enhancement penalty. The

trial court sentenced the defendant to fifty years on each count. The record

indicates it was the intent of the trial court to sentence the defendant for the

penalties of armed robbery with a firearm, violations of La.R.S. 14:64 and 14:64.3.

In State v. White, 42,725 (La.App. 2 Cir. 10/24/07), 968 So.2d 901, the defendant

was convicted of two counts of armed robbery with a firearm and sentenced to

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

sentence on each count to run concurrently. On error patent review, the court

noted that the trial court did not specify what portion, if any, of the defendant’s

thirty-five year hard labor sentence without benefits was imposed under La.R.S.

14:64.3. The court found that the absence of a specification that the defendant’s

sentences included a term under La.R.S. 14:64.3 rendered the defendant’s sentence

indeterminate. The court vacated the sentences and remand for resentencing

according to law for clarification of whether the defendant’s sentences included

8

any additional punishment under La.R.S. 14:64.3. Id. See also, State v. Billingsley,

11-1425 (La.App. 3 Cir. 3/14/12), 86 So.3d 872.

Accordingly, in this case, we vacate the sentences imposed on the

convictions of the armed robbery with a firearm and remand to the trial court for

resentencing in accordance with La.R.S. 14:64 and 14:64.3. The trial court should

clearly set forth the portion of the sentence enhanced under La.R.S. 14:64.3.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error and in his pro se brief to this court, the defendant

argues that the evidence did not establish beyond a reasonable doubt that he was

involved in the offenses for which he was convicted. The defendant maintains that

the only evidence presented at trial which pointed to him was a ―belated‖ lineup

identification by victim Lethaniel Leday. As such, the defendant concludes that

the state did not negate any reasonable probability of misidentification.

The analysis for a claim of insufficient evidence is well-settled:

The standard of appellate review for a sufficiency of the
evidence claim 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, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
A determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

A victim’s or witness’s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. State v. Davis, 02-1043, p. 3 (La.6/27/03); 848 So.2d
557, 559. In the absence of internal contradiction or irreconcilable
conflict with physical evidence, one witness’s testimony, if believed
9

by the fact finder, is sufficient support for a requisite factual
conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04); 874 So.2d
66, 79.

State v. Dorsey, 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 634, cert. denied,

___ U.S. ___, 132 S.Ct. 1859 (2012).

The first offense involved victim Lethaniel LeDay. LeDay testified that on

the night of October 27, 2008, he was driving his 1996 silver Chevrolet Caprice

and stopped at Walgreens to use the payphone to call his girlfriend. While he was

talking, he turned around and saw two black men approaching him, wearing black

hoodies. One of the men asked LeDay if he had change for either $100 or $50.

LeDay told him no and explained that he did not keep that kind of money on his

person. As LeDay started to walk away, the man lifted his shirt to expose a gun

and instructed LeDay to get in his car. LeDay was then forced at gun point to

drive the two men around town. He was later directed to a dark area where he was

ordered to stop the car and get out. LeDay complied and was then pushed into the

backseat where he was searched for money. The men subsequently demanded his

keys and jerked them from his hand. The men continued to question LeDay

regarding the whereabouts of his money. LeDay repeated that he had no money,

he had to work like everyone else, and he had to be at work that morning at 5:00

a.m. LeDay stressed to the man that if he did not show up for work, people would

start looking for him. The man told him not to worry about that because he was

going to deal with it. LeDay pleaded for the two men to take his car, telling them

he would not call the police. He explained that he had kids and just wanted to go

home. He was scared at that point.

When the assailants were unable to open the trunk, they commanded LeDay

to open it. After LeDay complied, the men began rummaging through the trunk

and found nothing. Next, LeDay was instructed to get in the trunk. The men
10

subsequently drove around for a bit before stopping again. LeDay could hear the

men digging though the glove compartment and then the armrest where he kept his

identification. One of the men called out LeDay’s name and address and told

LeDay he had better shut up because they knew where he lived. LeDay

complained that it was cold and difficult to breathe in the trunk. They told LeDay

he would be all right. After they started driving again, LeDay managed to get the

trunk to open. When the vehicle slowed down a little bit, he jumped out and

started running. Leday avoided capture by ducking behind trees and bushes,

eventually making his way to a nearby residence. He asked the resident to call the

police, and a police officer arrived soon thereafter.

LeDay identified the defendant in open court as one of his assailants.

During his interview with police, LeDay indicated that he could identify the

perpetrators, and he was later shown a photographic lineup. LeDay maintained

that he was not influenced in any way with regard to his identification of the

defendant, and he denied that he was coached to identify the defendant as a

perpetrator.

On cross-examination, Leday testified he was shown the photographic

lineup around eight or nine o’clock in the morning following the incident.

Although he was unable to see their faces at the time the two suspects approached

him, LeDay saw the perpetrator’s face when he was driving the two men around.

The perpetrator’s hoodie was off during this time. The second suspect who was

sitting behind LeDay kept his hoodie on the entire time. LeDay never saw the face

of the second suspect. According to LeDay, the defendant was the man that sat in

the front seat. He could not recall if either of the suspects had gold teeth.

During rebuttal, the state recalled LeDay to the stand and questioned him

further about a photographic lineup from which he was unable to identify the
11

defendant as a suspect. When asked why he was unable to identify anyone at first,

he stated:

At that time, I was - - I think I was like jittery, and I was kind of
terrified a little bit, because in the process of it, when it first started
and when they read my identification, called back to me with my
name, my address, and everything on it, and at that time, you know,
and I didn’t want to - - I didn’t want to - - you know, nothing to
happen to me.

When asked how he was able to identify the defendant in open court as a person

who committed the crime, LeDay replied:

After we left the - - left the station, I went home, and I just - -
you know, I just sat up all day. I couldn’t sleep after it happened, so I
was up for, like, three days straight, and I just couldn’t sleep. And the
detective had called me, I think - - I’m not too sure of the date or the
time, but I think it was the second day, he had called me like later on
in the day and asked me to come back down, and he said he needed
me to look at a couple of lineups and stuff. And by that time, I had - -
was home, and I did - - you know, I did some soul searching, and I
just said, ―I got to do the right thing.‖

....

And then he gave me the lineup and he said, ―Mr. LeDay,
there’s a couple of pictures. Could you pick out, you know, the - -
whoever - - if anybody looks familiar, just tell me why and how and
circle it and put your initials or my name on it.‖ I’m not too sure.

LeDay confirmed that the man he pointed to earlier in court was the person that

committed the crime against him.

On cross-examination, LeDay testified that he did not watch television when

he returned to his home after viewing the first photographic lineup. LeDay

described himself as ―paranoid‖ after the offense, and he sheltered himself in his

home. LeDay was certain about his identification of the defendant as his assailant.

He explained that after arriving home, he kept seeing the assailant’s face every

time he tried to close his eyes or go to sleep. He would never forget the person’s

face. When asked if he saw the individual who was with him in the front seat,

LeDay stated:
12

Yes, sir. When they was approaching me, like when I was at the --
when I turned around from the payphone -- when I was going to the
payphone, they was headed southbound on 171. And whenever I
turned around from the payphone, they was facing me, they was
coming towards me, and the one to the far left had his hood off and
one had it on, so whenever they approached me, I -- you know, he
asked me for some change and then, you know, and it went from there.

And then when he got in the car, he was sitting like this
(indicating), and his hood was off and we -- you know, he was telling
me where to go, and I’m kind of looking at him and looking at the
road, and he just told me where to go. And then whenever we got to
the point where they needed me to be, when he came over the driver’s
seat, he had the gun to me like this (indicating) and, you know, it was
no hood. And then when we got to the back of the trunk, the whole
time he’s talking to me, I’m like this (indicating), and I’m just
studying his face. I’m just trying to get – you know, if I can get –
when I get out of this, I won’t forget him.

LeDay stated that he identified the defendant on the day after the offense

after he was called to return to the police station. As soon as he saw the

photographic lineup, LeDay went straight to the defendant’s face. LeDay recalled

that he was instructed to circle the defendant, indicate how he knew the defendant,

and to initial and/or sign the lineup.

With regard to the investigation of the incident, Officer John Thacker with

the Lake Charles Police Department testified that he received a call at 11:20 p.m.

in reference to a robbery or carjacking at Walgreens. Officer Thacker spoke with

the victim, Lethaniel LeDay, who explained that he was on the payphone at

Walgreens when he was approached by two, young black male subjects wearing

hoodies with the hoods over their heads. After asking LeDay a question, the

subjects confronted LeDay with a weapon and advised him to get into his car, a

1996 silver Caprice Classic. LeDay then drove the subjects around until they

instructed him to stop and get out of the vehicle. The suspects told LeDay to give

them whatever money he had. LeDay advised that he did not have anything, and

he was told to get in the trunk of his car. LeDay complied, and the suspects drove

13

around for a while with LeDay in the trunk. Eventually, LeDay was able to open

the trunk and escape on foot. He ran up to a residence and banged for someone

inside to call the police.

The next incident occurred shortly thereafter that same evening, October 27,

2008. The victim, Demetrius Thomas, testified that he was on his way home from

work at around 11:00 p.m. when a tan/brown Caprice drove up. Two men got out

the vehicle, both brandishing guns, and told Thomas they wanted some money.

Thomas had no money on his person, and he emptied his pockets and opened his

wallet to show them. They made Thomas get on his knees, and they returned to

their car and drove off. Thomas did not recognize the assailants but observed they

were slim-built and about his height, five foot eight, or shorter. Thomas was not

shown a lineup after he gave his statement at the police station.

Corporal Hope Kingery Sanders was dispatched to the scene at 11:34 p.m.

Upon her arrival, she spoke with Thomas who reported he was walking along the

street when a champagne Chevrolet Caprice approached him and stopped. The two

occupants were dressed in dark clothing and hoodies. They got out of the vehicle,

and the passenger approached Thomas, pointed a gun at him, and demanded all of

his money. Thomas replied that had no money. He removed his wallet from his

right rear pocket, opened it, and showed the assailant he had no money. The

assailant grabbed his wallet, returned to the vehicle, and fled the scene. Thomas

was transported to the police station where his statement was taken.

A third incident also occurred on the night of October 27, 2008. Terry

Willis was on her way to meet friends when she observed a gray, older model car

that was following her. At times, the vehicle got so close to Willis that she was

unable to see the vehicle’s headlights. Willis was afraid the vehicle would hit her

if she tried to turn left into her friends’ residence. Willis thought that the driver
14

might have been drunk or was not paying attention. She continued on until the

vehicle eventually hit her. Willis turned into a nearby parking lot of a church, and

the vehicle pulled in and blocked her in. When she exited her car to check for

damage, the driver exited the vehicle and apologized to her. Willis stated that she

just wanted to ensure there was nothing wrong with her car. The passenger then

exited the vehicle, grabbed Willis by the neck, and held a gun to her head. She

described the gun as small and black. She did not notice anything special about the

gun. Also, the gun made contact with her head. According to Willis, the assailants

were wearing dark clothing, and they were African-American.

Willis testified that the road upon which they were traveling was busy. As

cars began to approach the scene, the assailants started to panic. As one of the

suspects was getting in the driver’s seat of Willis’ car, he told her to get in the car.

Willis was crying and telling the assailant to just take her car. The assailants then

fled the scene, leaving her behind. Willis stopped the next vehicle that approached

the scene and borrowed a cell phone. At one point, Willis had her cell phone in her

hand, but it was taken from her by one of the suspects.

When asked to describe the persons who committed the offense, Willis

responded:

The - - I really couldn’t pay attention to the driver. I was just -
- didn’t - - you know, I wasn’t in face with reality. I just know that
the guy was bigger than me, and the other guy was very nervous
trying to unlock the trunk. After he was apologizing by the driver’s
door, he had walked around to the trunk.

On redirect examination, Willis was asked if she saw the assailants who

approached her while she was driving her car. Willis responded that it was very

dark, and she was not able to see. The police did not provide her with a lineup of

possible suspects.

15

Detective Allison Toups with the Calcasieu Parish Sheriff’s Office testified

that she was dispatched around 11:55 a.m. to investigate a hit-and-run and

carjacking. When she arrived on the scene, Willis advised that her vehicle had

been stolen at gunpoint by two black males wearing hooded sweatshirts. They also

tried to kidnap her. She was driving a blue Nissan Altima and was hit from behind

by a silver Caprice. Willis pulled over in a church parking lot to assess the damage,

and the driver of the Caprice exited the vehicle and apologized for hitting her.

When Willis walked to the rear of her vehicle to check for damage, the passenger

got out the Caprice, showed Willis his gun, racked the slide back, and pulled his

hood over his head. The assailants then walked Willis to the back of the Caprice

and tried to unlock the trunk. When they observed a vehicle traveling towards

them, the assailants fled the scene, taking both vehicles. Willis was left behind and

flagged down the next vehicle for help.

Detective William Spees with the Calcasieu Parish Sheriff’s Office testified

that he brought Willis to the sheriff’s office, and while speaking to her, he learned

that the Caprice had been stolen earlier from Walgreens. The Caprice had been

recovered, and Willis’ vehicle had been involved in another carjacking/shooting.

Willis’ vehicle was later recovered along with her cell phone. After obtaining

subpoenas for Willis’ cell phone records, Detective Spees learned that several calls

had been made after the incident, leading first to Clark, and then to the defendant.

Several witnesses indicated that the defendant had been seen with Clark that night.

On cross-examination, Detective Spees stated that Willis was unable to see or

identify either of perpetrators because of the lighting at the scene.

The victim of the fourth incident, Christopher Leon Shakespeare, testified

that while driving his blue 2000 Ford Explorer, he was struck from behind by a

blue Nissan Altima that had been following him. Shakespeare pulled over and
16

exited his vehicle. As he looked up, the driver of the Altima was holding a gun

about a foot or two from Shakespeare’s head. Shakespeare described the

assailants as black and a little bit shorter than himself. He tried to avoid eye

contact with the assailants. By the time the passenger from the Altima got around

to Shakespeare, the driver had pulled him behind the Altima. They were situated

near the center of the road. Shakespeare did not get a good look at the driver but

recalled that he was short. He kept his hand over his eyes so he would not see

them. He was frightened.

After taking his wallet, one of the assailants instructed Shakespeare to get in

the trunk. He began to walk toward the trunk, and when he reached the trunk, he

took off running. He heard gunfire and then fell. Shakespeare was still conscious

but acted like he was dead. He heard both car doors slam, and the engines crank.

When he looked up, he saw his vehicle and the Altima leaving the scene.

Shakespeare tried to get up but was unable to move his legs. At one point, he

thought he was dying. He was then taken by ambulance to a hospital.

Shakespeare was not able to identify the assailants because the incident

happened so quickly. He never saw their faces. The bullet hit his spine on the left

side of his fifth vertebra, and he was in a coma for nine days. He also had

nightmares of a black nine millimeter gun that prevented him from sleeping. As a

result of the shooting is permanently disabled and he uses a cane to walk.

On cross-examination, Shakespeare testified he was six feet, one inch in

height. With regard to the assailants, he observed that the driver was taller than the

passenger, and they were wearing hoodies, one black and one gray. The driver was

six feet tall or shorter. He saw the passenger from the corner of his eye and could

tell he was short, probably five feet tall.

17

Officer Jason Raymond with the Lake Charles Police Department testified

that on October 28, 2008, he was dispatched at about 1:00 a.m. in reference to a

male subject lying on the street. Upon his arrival, Shakespeare stated he had been

carjacked and shot. He explained to Officer Raymond that he had been hit from

behind by a small car. Two black males got out of the car and tried to put him in

the back of the car. A struggle ensued, and Shakespeare was shot in the back. He

did not give Officer Raymond a description of the assailants or the gun used in the

offense.

Corporal Bendy Falcon with the Lake Charles Police Department testified

that he was also dispatched to the scene. When he arrived, Shakespeare was lying

on the road and had been shot and carjacked. The assailants were described as two

black males in dark clothing, and their vehicle was a Nissan, possibly an Altima or

Maxima.

Corporal Kevin Thomas with the Lake Charles Police Department testified

that he spoke with Shakespeare briefly on the scene. Shakespeare indicated he was

rear-ended by two unknown black males. The men were in a mid-sized vehicle,

possibly an Altima, and Shakespeare was driving a Ford Explorer. When he exited

his vehicle, the perpetrators approached him with guns, one black and silver and

one solid black. Shakespeare took off running and was shot in the back. None of

the witnesses with whom Corporal Thomas spoke saw the initial accident. They

only saw Shakespeare land in the middle of the street.

Detective Lesia McCullough with the Lake Charles Police Department

testified that she learned about a series of carjackings when she arrived for work on

the morning of October 28, 2008. The sheriff’s office was also investigating a

carjacking with similar circumstances, and the vehicles had been recovered.

Detective McCullough and Detective Franklin Fondel started investigating the case
18

from that point and interviewed Joshua Clark, the defendant, and a woman named

Ashley. The sheriff’s office had developed Clark as a suspect and obtained a

warrant for his arrest. Clark’s mother made arrangements with the police

department for him to turn himself in. He was taken into custody based on the

warrant.

A warrant for the defendant’s arrest was obtained by the police department

following interviews in Rayne, Louisiana. The defendant was transported back to

Lake Charles where Detectives McCullough and Fondel met with him. According

to Detective McCullough, the defendant’s version of the events was very distorted

and at one point, he denied knowledge of the events, stating he was not there.

On cross-examination, Detective McCullough testified that photographic

lineups were shown to victims LeDay and Shakespeare. LeDay was shown two

photo lineups on October 29, 2008. The first lineup included a photo of Clark.

LeDay, however, identified another individual as one of the perpetrators. The

second lineup included a photo of the defendant. LeDay indicated that he did not

see anyone he recognized.

Detective Fondel testified that on October 29, 2008, he interviewed Clark.

Following the interview, a warrant for the defendant was obtained. The defendant

was located on October 31, 2008, at his girlfriend’s residence in Rayne, Louisiana.

Following his arrest, the defendant was transported to Lake Charles where he was

interviewed by detectives. The defendant maintained he had been in Rayne for

two weeks and had not been to Lake Charles during that time. The defendant

continued to deny he had been to Lake Charles, even after Detective Fondel told

him that his father, sister, and girlfriend all confirmed he had been in Lake Charles,

along with Clark. Toward the end of the interview, Detective Fondel brought in

the defendant’s father. The defendant, however, said that his father was lying and
19

did not see very well. The defendant maintained that his father was mistaken about

the date he had been at his father’s home.

On cross-examination, Detective Fondel testified that he spoke with the

defendant’s father on two occasions. After seeing Clark’s photo in the paper, the

defendant’s father called detectives to come to his residence where he gave them

information. He was then instructed to go to the police station where detectives

obtained a video statement.

Ashley Nicole Johnson, the defendant’s ex-girlfriend, testified that on

October 27, 2008, she was living in Rayne, Louisiana, and was dating the

defendant at that time. According to Johnson, the defendant left her residence on

Monday, around 7:00 p.m., and was going to his mother’s house in Lake Charles.

He returned to Johnson’s residence the following day around 6:00 p.m.; nothing

was unusual about his return. She did not speak to the defendant about his

whereabouts while he was gone, thinking he had actually gone to another girl’s

house. On Friday, when the police arrived at Johnson’s home, they knocked on the

door and asked who was inside the home with her. She indicated that the

defendant was inside, and they were both arrested. When Johnson was asked on

cross-examination how often the defendant visited with her, she stated that he lived

with her.

Considering the evidence adduced at trial, we find the state established the

defendant was one of the two assailants involved in the offenses herein. First, the

defendant was positively identified by one of the victims, Lethanial LeDay, from a

photographic lineup and at trial. Although LeDay did not identify the defendant

from the first photographic lineup shown to him the morning after the offense, he

was certain of the defendant’s identification made the following day from a second

photographic lineup. LeDay also provided a plausible explanation at trial
20

regarding his inability to identify the defendant from the first photographic lineup

— he was jittery and terrified because the assailants had seen his identification

which included his address. LeDay was afraid something might happen to him.

LeDay’s positive identification of the defendant was supported by

circumstantial evidence adduced at trial. The timeline of facts linked LeDay’s

vehicle to the second and third incidents, and the vehicle taken from Terry Willis

during the third incident was then linked to the fourth incident. Additionally, all

four incidents involved two black males wearing dark hooded sweatshirts. Lastly,

the defendant’s participation in the crimes was also supported by the statements of

his father and ex-girlfriend. Accordingly, we find there is no merit in this alleged

error.

On careful review of the record, we have found that the state failed to prove

an element of the offense of aggravated kidnapping. Aggravated kidnapping is

defined at La.R.S. 14:44:

Aggravated kidnapping is the doing of any of the following acts
with the intent thereby to force the victim, or some other person, to
give up anything of apparent present or prospective value, or to grant
any advantage or immunity, in order to secure a release of the person
under the offender’s actual or apparent control:

(1) The forcible seizing and carrying of any person from one
place to another; or

(2) The enticing or persuading of any person to go from one
place to another; or

(3) The imprisoning or forcible secreting of any person.

The defendant was convicted of the aggravated kidnapping of the first victim, Mr.

LeDay. Once the defendant and his accomplice forced Mr. LeDay into his car,

first into the passenger compartment and later into the trunk, there is no evidence

that they forced Mr. LeDay, or any other person, to give up anything of value in

order to secure Mr. LeDay’s release.
21

When the state’s case lacks evidence of an essential element of the offense

charged, the conviction must be set aside, no matter how the deficiency is brought

to the attention of the court. State v. Raymo, 419 So.2d 858 (La.1982). We next

turn to La.Code Crim.P. art. 821(E), which provides:

If the appellate court finds that the evidence, viewed in a light
most favorable to the state, supports only a conviction of a lesser
included responsive offense, the court, in lieu of granting a post
verdict judgment of acquittal, may modify the verdict and render a
judgment of conviction on the lesser included responsive offense.

We find the evidence adduced at trial does support a conviction for the lesser

included offense of second degree kidnapping. We therefore modify the verdict

and enter a conviction of second degree kidnapping. The sentence is vacated, and

we remand the case to the trial court for sentencing for second degree kidnapping.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the defendant argues that sentences are grossly

excessive given the nature of the offenses for which he was convicted. As the

result of errors patent, we have found that the defendant’s sentences for his three

convictions for armed robbery with the use of a firearm be vacated. Furthermore,

we have vacated the conviction and sentence for aggravated kidnapping. As such,

this assignment of error as it pertains to these sentences is now moot.

As noted above, the defendant did not file a written motion to reconsider his

sentences as required by La.Code Crim.P. art. 881.1. Immediately following the

sentencing hearing, defense counsel stated, ―Mr. Bartie understands . . . And we

reserve all rights [to appeal sentencing and trial].‖ Defense counsel did not orally

object to the sentences or specify any grounds for an objection. Louisiana Code of

Criminal Procedure Article 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
22

state or the defendant for raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or review.

Accordingly, a review of the defendant’s claim is relegated to a bare claim of

constitutional excessiveness of his sentences. State v. Barling, 00-1241, 00-1591

(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808

So.2d 331.

In State v. Thibodeaux, 05-680, p. 4 (La.App. 3 Cir. 12/30/05), 918 So.2d

1093, 1095 (alteration in original), this court discussed excessive sentences, as

follows:

A sentence is deemed excessive if the penalty is grossly
disproportionate to the severity of the crime as to shock one’s sense of
justice, or makes no measurable contribution to acceptable penal goals
and is, therefore, nothing more than a needless imposition of pain and
suffering. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d
331. A trial court has vast discretion in the imposition of a sentence
within the statutory limits and such sentence shall not be set aside as
excessive absent manifest error. State v. Etienne, 99-192 (La.App. 3
Cir. 10/13/99), 746 So.2d 124. This court has determined the factors
to be considered in deciding whether a sentence is excessive. In State
v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, writ denied,
03-562 (La.5/30/03), 845 So.2d 1061, this court stated:

[A]n appellate court may consider several factors
including the nature of the offense, the circumstances of
the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed
for similar crimes. State v. Smith, 99-0606 (La.7/6/00),
766 So.2d 501. While a comparison of sentences
imposed for similar crimes may provide some insight, ―it
is well settled that sentences must be individualized to
the particular offender and to the particular offense
committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the
trial court to particularize the sentence because the trial
judge ―remains in the best position to assess the
aggravating and mitigating circumstances presented by
each case.‖ State v. Cook, 95-2784 (La.5/31/96), 674
So.2d 957, 958.

Id. at 789.

23

The sentencing range for attempted first degree murder is ten to fifty years at

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

the defendant received the maximum possible sentence. La.R.S. 14:30 and 14:27.

The sentencing range for carjacking is two to twenty years, without benefit of

parole, probation, or suspension of sentence. La.R.S. 14:64.2. Again, the

defendant received the maximum possible sentences for his two carjacking

convictions. Although the defendant received maximum sentences for attempted

first degree murder and carjacking, his sentences for these crimes were ordered to

run concurrently with his life sentence for aggravated kidnapping, which has now

been vacated.

At sentencing, victim Shakespeare addressed the court as follows:

MR. SHAKESPEARE:

It’s been a long road, you know, it’s been three years now, it’s a
good day that this day has finally came, but I don’t know, I just think
that he should get what he gave to me and everybody else, hard time,
trouble. Even though it’s been three years from this, almost three
years and two days three days, you know, I go through everything – I
mean, I have problems every day, I mean, from walking, running,
playing with my kids, and it’s just hard, but, you know, I’m just happy
to be here and get this over with and I trust that the justice system will
do the right thing. That’s all I have to say. Thank you.

THE COURT:

Well, you’ve got a great attitude for someone who has gone
through hell, and I appreciate you testifying and speaking today.

MR. SHAKESPEARE:

Thank you.

THE COURT:

Thank you, sir.

The state subsequently stressed that the defendant was found guilty as

charged by a jury of his peers and urged the trial court to impose the maximum

24

sentences. The State addressed the defendant’s criminal history, including simple

robbery and several other arrests, and emphasized he had wreaked havoc on

several individuals for no reason. Lastly, the state maintained the defendant

showed no respect for human life, shooting one of the victims and leaving him for

dead. Defense counsel, on the other hand, contended that the defendant had some

degree of remorse with regard to ―some of the instances.‖ Given the opportunity,

however, the defendant chose not to speak on his behalf at sentencing. Defense

counsel stated that the defendant had no reason to say anything at sentencing.

Considering the serious nature and violence used in the commission of the

offenses, the trial court in its discretion could have reasonably imposed

consecutive sentences for one or more of these offenses even though they

constituted parts of a common scheme or plan. ―Although Louisiana law favors

concurrent sentences for crimes committed as part of a single transaction,

La.C.Cr.P. art. 883; State v. Underwood, 353 So.2d 1013, 1019 (La.1977), a trial

judge retains discretion to impose consecutive penalties on the basis of other

factors, including the offender’s past criminality, violence in the charged crimes, or

the risk he or she poses to the general safety of the community. State v. Williams,

445 So.2d 1171, 1182 (La.1984); State v. Jacobs, 371 So.2d 727, 732-33 (La.1979)

(on reh’g).‖ State v. Thomas, 98-1144, p. 1 (La. 10/9/98), 719 So.2d 49, 49.

Additionally, with regard to the maximum sentences imposed on the defendant, the

courts agree that maximum sentences are typically reserved for the most serious

offenses and the most egregious offenders. See State v. Baker, 08-54 (La.App. 3

Cir. 5/7/08), 986 So.2d 682. Accordingly, we find the defendant’s concurrent

sentences for attempted first degree murder and carjacking are not excessive.

On appeal, the defendant acknowledges that his conviction for aggravated

kidnapping carries a mandatory life sentence. Also, he has not asserted that the
25

trial court should have departed from same. He takes issue, however, with the

additional one hundred fifty years imposed for his convictions of armed robbery

with a firearm to run consecutively with his life sentence. He complains that it is

humanly impossible to serve such a sentence. In light of our order to vacate the

defendant’s sentences for aggravated kidnapping and armed robbery with a firearm,

this argument is now moot.

We find there is no merit to this assignment of error.

CONCLUSION

The defendant’s conviction and sentence for aggravated kidnapping are

vacated. We find the defendant guilty of the lesser and included offense of second

degree kidnapping and remand for sentencing. His sentences for attempted first

degree murder and carjacking are affirmed. The defendant’s sentences imposed on

the convictions of armed robbery with the use of a firearm are vacated, and the

case remanded to the trial court for resentencing in accordance with La.R.S. 14:64

and 14:64.3. The trial court should clearly set forth the portion of the sentence

enhanced under La.R.S. 14:64.3. Additionally, the matter is remanded to the trial

court for proper disposition of the attempted aggravated kidnapping charge.

REMANDED FOR DISPOSITION OF ATTEMPTED AGGRAVATED
KIDNAPPING CHARGE.
CONVICTION AND SENTENCE FOR AGGRAVATED
KIDNAPPING VACATED; CONVICTION FOR SECOND DEGREE
KIDNAPPING ENTERED AND REMANDED FOR SENTENCING.
ALL OTHER CONVICTIONS AFFIRMED.
SENTENCES FOR ARMED ROBBERY WITH A FIREARM
VACATED AND REMANDED FOR RESENTENCING;
REMAINING SENTENCES AFFIRMED.

26