GREMILLION, Judge.
Defendant, Dryefus Malbrough, along with three co-defendants, Terrance Sinegal, Lorenzo Angelle, and Courtney Romero, robbed the victim, Nicholas Carter, of $289.00. Defendant was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. Following a jury trial, Defendant was found guilty of the responsive verdict, simple robbery. He was sentenced to serve seven years at hard labor, with credit for time served.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is one error patent.
The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that he received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.
Defendant argues that "[t]hese three assignments of error are linked together and when jointly considered establish insufficient proof to convict the defendant beyond a reasonable doubt."
State v. Hearold, 603 So.2d 731, 734 (La. 1992). Accordingly, these assignments of error are addressed first in the event Defendant is entitled to an acquittal.
The analysis for a claim of insufficient evidence is well-settled:
State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86.
Defendant was convicted of simple robbery, which is defined in La.R.S. 14:65(A) as "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, but not armed with a dangerous weapon." Defendant does not contest whether a robbery took place on the evening of December 15, 2008. He challenges only his identity as established by co-defendants Lorenzo Angelle and Courtney Romero.
Defendant maintains that "the trial court allowed the introduction of impermissible hearsay by allowing both [Officers Glenn Landry and Monika Porter] to swear to the jury what Courtney Romero
Accordingly, we could disregard Defendant's argument as to assignment of error number three.
Moreover, even if the record revealed that Defendant raised a hearsay objection to the testimony of either officer, and the testimony was impermissibly admitted, we find that the error was harmless. Both Romero and Angelle testified at trial and were subject to cross-examination. Also, the evidence was cumulative with the other evidence presented, which is discussed below in greater detail. See State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120. There is no merit to assignment of error number three.
Defendant maintains that the trial court improperly allowed the introduction of Romero and Angelle's written statements which, in effect, "corroborated" Officer Landry and Officer Porter's versions of the events.
During the testimony of Officer Porter, the State moved to introduce the statements of Romero and Angelle, which were prepared as part of her report at the time the offense was committed. Counsel for Sinegal objected on the basis that introduction of the statements should be withheld until the respective individuals testified at trial. The objection was overruled, and Defendant's counsel concurred in Sinegal's objection.
The statements were then disseminated to the jury, and Sinegal's counsel reiterated his objection to the introduction of the statements. Defendant's counsel stated:
On appeal, Defendant does not challenge the introduction of the statements based on the best evidence rule but instead, maintains that the statements were hearsay evidence.
The State argues that the statements were offered under the hearsay exception of "explanation of conduct" concerning information received by the officer which led to the ultimate arrest of the accused. The State adds that an out-of-court statement is not hearsay if it was introduced to explain why a person took a particular course of action but not to prove the truth of the matter asserted. In support of its argument, the State refers to State v. Turner, 392 So.2d 436 (La.1980), wherein the defendant objected to the testimony of a criminal investigator regarding his reference to a report of possible criminal activity involving the defendant. The court found that the testimony was not offered to prove the truth of information received but to show why the investigator ordered a search.
The issue at hand, however, is the admissibility of Romero and Angelle's statements, not the testimony of the officers referring to a report or tip leading to their subsequent conduct. The record reflects that both Romero and Angelle testified at trial subsequent to the introduction of their statements. Defendant was afforded the opportunity to cross-examine these witnesses regarding the content of their respective statements. Accordingly, Defendant has not shown that the statements are hearsay evidence. La.Code Evid. art. 801(D)(1). Also, Defendant has not alleged or shown that he suffered any prejudice by the introduction of the statements at the time of Officer Porter's testimony rather than introducing them at the time Romero and Angelle testified.
Defendant concludes that the jury relied on improper hearsay evidence in determining his guilt and that absent the inadmissible evidence, the evidence was insufficient to convict him. Defendant, however, has not shown that the trial court allowed improper hearsay evidence or that the introduction of hearsay evidence played a significant role in identifying him as a perpetrator in the offense.
Even if the testimony of the officers and Romero and Angelle's statements had been excluded at trial, the testimony of Romero and Angelle identified Defendant as one of the masked perpetrators, a man with whom they were both acquainted prior to the offense and who was involved in the plan and eventual robbery of the victim. Romero stated that she was at Angelle's house when Angelle received a phone call from Defendant. Romero was fifteen years old at that time and was living with Angelle. Defendant indicated that he wanted to "hit a lick" or rob someone. Soon thereafter, Romero and Angelle met up with Defendant and co-defendant Terrance Sinegal, a/k/a "Trill." Romero then called the victim and arranged to meet him at her cousin's house to purchase Ecstasy pills for her cousin. Romero led the victim to believe that after taking the pills inside to her cousin, she would leave with the victim.
To get the pills and money from the victim, Romero believed that the three men planned to strong-arm the victim. Romero called the victim to ascertain his
Afterwards, Romero and Angelle went to the home of Mennifer Sinegal, Defendant's girlfriend, where they met with Defendant and Sinegal to split the money. Of the $289.00 stolen, Angelle received $89.00, and Defendant and Sinegal each got $100.00. Romero and Angelle then returned to Angelle's house and went to bed without changing clothes.
About thirty to forty-five minutes later, the police arrived at Angelle's house. At first, Romero denied having any knowledge of the offense. After the police brought Romero to the station and contacted her mother, Romero gave a written statement. Romero was prosecuted through the juvenile system for her involvement in the offense. She admitted to the charge, principal to armed robbery, served three months in juvenile detention, and was placed in drug court where she was in treatment for nine months. Romero stated that she successfully completed the program and was clean at trial.
On cross-examination, Romero testified that she was eleven years old when she started using drugs. The victim began supplying her with drugs, including Ecstasy, cocaine, and marijuana, when she was twelve-to-thirteen years old. Prior to her relationship with Angelle, she had a sexual relationship with the victim. She used her prior relationship with the victim to lure him to the location of the robbery, with the understanding that she would leave with him to have sex. Romero decided to come clean about the robbery when she learned that the victim had given her cellphone number to the police. Lastly, Romero testified that Angelle was the father of her child.
Angelle also testified that he and Romero were living together at the time of the offense. They received a phone call from Defendant who wanted to "hit a lick," meaning he was broke and wanted money. Angelle and Romero then met up with Defendant and Sinegal at a Shell station where they came up with a plan to rob the victim. Romero would remove the keys from the victim's car, and the three men would confront him and take everything he had. Angelle stated that the use of weapons was not part of the plan.
When they arrived at the location, Angelle, Defendant, and Sinegal hid while Romero waited for the victim in the street. When the victim drove up, Romero walked to his vehicle and removed the keys. Next, Defendant and Sinegal ran from behind a tree wearing black hoodies and bandanas covering their noses and mouths. They were armed with guns. Defendant and Sinegal pointed their guns in the victim's face and yelled "give it up." Meanwhile, Angelle searched the vehicle. The victim gave the men $289 and a few Ecstasy
Afterwards, Angelle and Romero went back to his house and went to sleep. About an hour later, the police arrived. Angelle told the police that he had been sleeping since 8:30 p.m. and knew nothing about the offense. The police brought him and Romero to the police station. Once he arrived at the station, Angelle decided to cooperate and gave a written statement admitting to participation in the robbery. Angelle identified Defendant and Sinegal in open court as the two masked men who participated in the robbery. Angelle was charged with principal to armed robbery and pled guilty to the lesser charge of simple robbery. At the time of trial, Angelle had not yet been sentenced.
The State stresses that the testimony and statements of the victim also implicated Defendant in the offense. Further, the State maintains that Defendant tried to get the victim to change his original statement.
The victim testified at trial that he did not know the two armed men. Also, he did not identify Defendant in his first statement taken shortly after the offense. About a year after the offense, the victim implicated Defendant in a second statement taken by investigator, Roy Given, hired by counsel for Sinegal. The following colloquy took place:
One week before trial, the victim, incarcerated for an unrelated offense, received a verbal message from Defendant, also serving time in the same facility, that he wanted to talk to the victim. The victim was presented with a handwritten statement that he presumed was written by Defendant. The statement indicated that the victim wanted to dismiss the charges against Defendant. The statement was dated March 6, 2011, and reads:
On cross-examination, the victim maintained that drugs were not taken from him during the robbery, and he was not in possession of drugs at the time of the offense. When asked if he had ever provided drugs to Romero, the victim admitted he had "smoked" with her. He denied ever giving Romero Ecstasy pills.
The reason the victim gave his second statement was to prove that the physical description of the perpetrator believed to be Terrance Sinegal did not fit Sinegal's physical description. According to the victim, the perpetrator was big. Additionally, the victim recalled telling the prosecutor on October 26, 2010, that Sinegal had nothing to do with the offense. Again, the victim asserted that no one had threatened him.
On redirect examination, the victim admitted that about a year after the offense, he spoke with Sinegal's mother, who asked him to help her out. The victim then went to his attorney, who subsequently sent a private investigator to take his statement. The victim denied implicating Defendant in his statement, because he did not know Defendant at the time. The victim was then shown a copy of the statement wherein he had identified Defendant by name as a participant in the offense. The victim maintained that he could not see the faces of the men but learned that Defendant was there and had put a gun in his face.
Regarding his third statement, the victim stated he was taken from "the yard" to Defendant's pod where Defendant gave him a document to sign. The victim testified that the document had already been written when it was given to him to sign, and he did not compose the language in the statement.
Although there are discrepancies in the victim's testimony and statements, the victim implicated Defendant in the offense and never retracted his identification of Defendant as one of the perpetrators. Considering the testimony of co-defendants Angelle and Romero and that of the victim, we find the evidence was sufficient to prove that Defendant was a participant in the crime. Defendant does not challenge any elements of the offense other than his identity. Accordingly, there is no merit in assignment of error number two.
Defendant maintains that a review of the record reveals no reference or testimony as to the venue of where the offense of armed robbery occurred. As such, Defendant contends that the prosecution failed to prove the venue of the instant offense.
In support of his argument, Defendant refers to State v. Beard, 249 La. 811, 191 So.2d 631, 632 (1966) (citations and footnote omitted), wherein the court stated:
We note that the bill of information filed against Defendant indicates that the offense occurred in Lafayette Parish. Defendant did not object to the bill of information or challenge the venue as stated in the bill of information in a pre-trial motion to quash.
In State v. Moss, 08-1079, pp. 13-14 (La.App. 4 Cir. 7/22/09), 17 So.3d 441, 449-50, writ denied, 09-1895 (La.4/9/10), 31 So.3d 382 (footnote omitted), the court explained:
Likewise, we find that Defendant herein did not preserve his challenge of venue for appellate review.
Defendant's conviction is affirmed; this matter is remanded to the trial court with instructions to comply with the notification requirements of La.Code Crim.P. art. 930.8.
