AMY, Judge.
The defendant, Dexter O'Neal Arvie, was convicted on one count of aggravated kidnapping, a violation of La.R.S. 14:44, and three counts of armed robbery, violations of La. R.S. 14:64. He now appeals both the convictions and sentences. For the following reasons, we affirm.
The State alleges that the defendant in this matter, Dexter O'Neal Arvie, held an elderly man living in Mamou, Louisiana, Alton Clark, captive during a two-day period, August 3—4, 1995. During this period of captivity, which resulted in a kidnapping charge, the defendant allegedly forcefully took money from Clark on three occasions. As a result of these takings, the defendant was also charged with three counts of armed robbery.
The State maintains that the defendant was aided in the events of the two-day period by Virginia Poullard, his ex-wife. Poullard, who testified that she lived with Clark and was pregnant with his child at the time of the events, contends that the defendant forced her to assist in the alleged crimes. She testified that the two-day period of captivity came to an end on August 4th when the three drove to Sherburne Reserve in St. Martin Parish. She further testified that the defendant taped Clark's face and body and threw him into a body of water. At the time of trial, Clark's whereabouts were unknown.
On November 17, 1995, the defendant was charged by grand jury indictment with one count of aggravated kidnapping, a violation of La.R.S. 14:44, and two counts of armed robbery, violations of La.R.S. 14:64. He was subsequently arraigned and pled not guilty to
On April 15, 1996, the defendant was re-charged by grand jury indictment with one count of aggravated kidnapping, a violation of La.R.S. 14:44, and three counts of armed robbery, violations of La.R.S. 14:64. He was arraigned for a second time and pled not guilty to the charges.
On the day of the sentencing hearing, the defendant filed a Motion for an Appeal, which was granted that day, and a Motion for a New Trial, which was set for hearing on July 11, 1997. The defendant also made an oral Motion to Reconsider Sentence, which was denied by the trial court during the hearing. Subsequently, on June 17, 1997, the defendant filed a written Motion to Reconsider Sentence, which was set for hearing on July 11, 1997. On that date, arguments were heard with respect to the Motion for a New Trial, and the trial court denied the motion. However, the Motion to Reconsider Sentence was not discussed during the hearing. The defendant now appeals his convictions and sentences assigning the following as error:
By this assignment, the defendant contends that the evidence adduced at trial was insufficient to support his convictions. He does not attempt to dispute the existence of any of the elements of either crime of which he was convicted, rather, he claims the verdicts were erroneous because they were based primarily on the unreliable testimony of Virginia Poullard. Although physical and other testimonial evidence was introduced to corroborate Poullard's allegations, it was her testimony that established the crimes were committed and linked the defendant to the crimes. Additionally, the defendant maintains that one of the armed robbery convictions, based on the cashing of one of Clark's checks at a bank's drive-through window, is unsubstantiated as the bank teller who cashed the check testified that only Clark and Poullard were in the vehicle on that date.
The defendant was convicted of one count of aggravated kidnapping and three counts of armed robbery. La.R.S. 14:44 defines the crime of aggravated kidnapping as follows:
As for an armed robbery conviction, the State must prove the elements contained within La.R.S. 14:64(A). The statute provides as follows:
At trial, the events surrounding the alleged crimes were developed almost exclusively through Poullard's testimony. She testified that, in the early morning hours of August 3, 1995, she and the defendant, her ex-husband, went to the home of Alton Clark, an elderly man, who resided in Mamou, Louisiana. Poullard testified she was Clark's companion and had been living with him for more than eight months. She further stated that she was seven months pregnant with Clark's child at the time of the alleged offenses.
Poullard testified that, before arriving at Clark's house, she had been at a night club in Ville Platte where she got "high" and that she had gotten a ride to Mamou with a man named Hurly Tezeno. During the drive to Mamou, Poullard and Tezeno encountered the defendant walking along the road and gave him a ride. Sergeant Adam Fruge of the Mamou Police Department testified that he stopped Tezeno's vehicle for traffic violations at approximately 3:30 a.m. on August 3rd. He confirmed that Poullard and the defendant were both passengers in the vehicle. Poullard testified that after the traffic stop she and the defendant walked to Clark's residence, knocked on the door, and were allowed into the house by him.
Poullard testified that she asked Clark to drive the defendant home and that the men left, but that they returned to the residence at approximately 6:30 to 7:00 a.m. She stated that she and the defendant smoked crack cocaine, which the defendant had in his possession upon the men's return. She further stated that, although Clark did not participate in the drug use on this occasion, she had seen him use cocaine and marijuana on previous occasions.
Poullard testified that, on the third of each month, Clark's Veteran's Administration check was automatically deposited into his bank account and that, knowing this, the defendant asked Clark for money. She stated that, after Clark refused the request, the defendant became violent, struck Clark, armed himself with Clark's rifle, and began demanding money. Poullard testified that she and the defendant proceeded to tie Clark's feet and hands with cut electrical cords. She alleged that the defendant forced her to assist him at gunpoint. Poullard testified that she then retrieved cash from Clark's wallet and left to purchase some drugs, as she was directed to do by the defendant.
Poullard testified that, when she returned, Clark was untied and sitting in a chair talking to the defendant. The defendant then took the cocaine from Poullard and used it. She stated that Clark then told her to retrieve two of his blank personal checks, one of which he signed and filled out for $200.00. He then gave it to Poullard for completion. Poullard alleges that this practice was repeated on August 4th when Clark signed a $500.00 check. Twice, Poullard drove Mr. Clark through the drive-through window of his local bank where he cashed the $200 check on August 3rd and the $500 check on August 4th. According to Poullard, Clark signed the checks so that the defendant would not harm him.
Poullard testified that the defendant accompanied her and Clark during both trips to the bank and that he was armed with a knife on both occasions. However, the attending bank teller testified at trial that during the first trip, Poullard and Clark were alone in the vehicle, although during the second trip
After leaving the bank on August 3rd, the defendant allegedly asked Clark if he and Poullard could drive him to Oakdale to purchase some more drugs. Poullard testified that Clark replied, "Just do what you want. Just don't hurt me." Thereafter, Poullard drove the group to Oakdale where the defendant allegedly purchased $100 worth of drugs.
On the night of August 3rd, the three rented a motel room in DeRidder. Poullard stated that, during the night, the defendant left her and Clark alone in the motel room on at least two separate occasions to purchase more drugs. However, Poullard and Clark did not attempt to flee. Poullard stated that Clark told her earlier that night to not "do anything or say anything to alarm Dexter" and to do as the defendant said.
On the morning of August 4, 1995, according to Poullard's testimony, she left the men to purchase gasoline and breakfast. Thereafter, the three drove to the bank in Mamou to cash the $500.00 check, as previously discussed. Poullard testified that, upon leaving the bank, Clark attempted to exit the vehicle; however, he was grabbed by the defendant who told him that "he would cut his throat off if he would do it again." The defendant then ordered Poullard to lock the doors to the vehicle.
After leaving the bank, the defendant instructed Poullard to drive in the direction of Opelousas and eventually to turn onto Highway 190. She stated that, at that point, she believed the defendant was going to kill both her and Clark. During the drive, Mr. Clark allegedly asked the defendant, "what are you going to do to me?" According to Poullard's testimony, the defendant did not reply, but only laughed. The defendant directed Poullard to a destination in Sherburne Reserve located in St. Martin Parish. Upon exiting the vehicle, the defendant opened the passenger door, struck Clark in the face, and forced him from the vehicle. According to Poullard, the defendant removed Mr. Clark's dentures from his mouth "because that would be evidence of his body being found," taped Clark's head, mouth, nose, and feet, and threw him in a nearby body of water. She stated that she protested, but to no avail. She testified that the defendant threw a pair of scissors in the water and later discarded a bag containing other articles in a garbage container in Opelousas.
After leaving the reserve, Poullard and the defendant drove around the surrounding area, and on August 5th, drove to Mamou to return Clark's car to his residence. She stated that she and the defendant left Clark's residence on foot and received a ride from Warren Doucet who was traveling through Mamou in his vehicle. Doucet confirmed at trial that he had, indeed given them a ride on the morning of August 5th.
Poullard testified that the defendant threatened to kill her parents and children if she told anyone of the events involving Alton Clark. Finally, Poullard stated that she had not seen Clark since the events of August 4, 1995.
In brief, the defendant attacks Poullard's credibility. She admitted to crack cocaine use and that she had occasionally exchanged sex for drugs. She was also a convicted felon, and had undergone a probation revocation hearing one week prior to the present trial as a result of testing positive for cocaine.
The defendant also points to the conflict between the testimony of the attending bank teller and that of Poullard. The teller stated that Poullard and Clark were alone in the vehicle during the August 3rd trip through the bank's drive-through window. However, Poullard stated that the defendant, while armed with a knife, accompanied her and Mr. Clark during both trips to the bank.
In State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir.1993), writ denied, 93-2774 (La.1/13/94); 631 So.2d 1163, this court stated the following:
See also State v. Henry, 95-428 (La.App. 3 Cir. 10/4/95); 663 So.2d 309.
In short, issues of credibility rest with the trier of fact. Apparently, the jury did believe Poullard's account of the events and circumstances surrounding the crimes. Furthermore, Poullard's testimony was corroborated by other evidence. The bank teller who cashed the checks testified that Poullard and Clark came to the bank twice to cash checks and that, on one of these visits, a third man was in the vehicle with them. Additionally, the checks themselves, one for $200.00 and one for $500.00, were also entered into evidence. Testimony of police officers established that fingerprints matching Poullard's and those of the defendant were taken from Clark's residence. This testimony also indicated that cut electrical cords, drug paraphernalia, and blood stains were also found in the house, all of which support Poullard's account of the events. Further, blood stains were found on the headrest of the passenger seat of Clark's car. Finally, physical evidence, such as boots similar to those worn by Clark and scissors, were found by police officials at the location in Sherburne Reserve where Poullard alleged that the defendant threw Clark into the body of water.
Given Poullard's testimony and the corroborating evidence, we conclude that the record contains sufficient evidence to support the defendant's convictions.
By this assignment, the defendant contends that the trial court erred in denying defense counsel's motion for a mistrial based on improper statements made by the State during its closing argument. The defendant argues that the State repeatedly made improper references to the defendant's failure to testify at trial, and thus, a mistrial should have been granted pursuant to La.Code Crim.P. art. 770(3).
Article 770 of the Louisiana Code of Criminal Procedure provides, in part, as follows:
In State v. Bourque, 622 So.2d 198, 240 (La.1993),
In State v. Watts, 596 So.2d 306, 309 (La. App. 3 Cir.), writ denied, 599 So.2d 316 (La.1992), the State in closing argument made the following comments: "`Now let's turn to the defense case. There is no case. The State's case stands uncontradicted, uncontroverted.' " The defendant argued that he was the only person who could have testified in order to controvert the State's evidence and, thus, any such remark was a reference to his failure to take the stand. The State maintained that there were other people present at the commission of the crime who could have refuted their testimony. Citing State v. Jackson, 454 So.2d 116 (La.1984), and State v. Porter, 547 So.2d 736 (La.App. 3 Cir.1989), this court held that "an indirect reference to a defendant's failure to testify does not constitute reversible error unless the prosecutor intended to emphasize the defendant's failure to testify." Watts at 309. The court also concluded that "the prosecutor ... simply referred to a lack of evidence to refute or contradict that presented by the State." Id. See also State v. Sergon, 539 So.2d 1275 (La.App. 3 Cir.1989).
The defendant in the present case contends that the State made improper references to the defendant's failure to testify. The prosecutor made the following statements during closing argument:
At this point in the State's argument, defense counsel objected on the basis that the prosecutor was referring to evidence not in the record. Counsel also made a motion for a mistrial based on the State's allegedly improper references to the defendant's failure to testify. The motion was denied by the trial court without reasons. Thereafter, the State continued its closing argument and made the following remarks:
In brief, the defendant contends he was the only witness who could have refuted Virginia Poullard's testimony, as Poullard testified that only she, Clark, and the defendant were present during commission of the crimes, and thus, the State's comments regarding her uncontradicted testimony improperly directed the jury's attention to the defendant's failure to testify. We do not agree.
Our review of the State's complete closing argument reveals that no direct reference was made to the defendant's refusal to testify. Further, any inference of such that can be gleaned from the argument, if any, is only an indirect reference. According to the supreme court's decision in Bourque, 622 So.2d 198, after an indirect reference to the defendant's failure to testify is made, a court must attempt to determine the intended effect on the jury. Id. As previously stated, general statements regarding the State's unrebutted case are permissible. Id. However, the supreme court noted in Bourque that if the defendant is the only person who could possibly rebut the State's case, that a mistrial is required. Id. We do not find that to be so in the instant matter. While true that Poullard's testimony indicated that she, the defendant, and Clark were alone during the course of the events, we do not conclude that the defendant is the only witness who could possibly have countered her version of the events. In fact, most of the witnesses presented corroborated Poullard's version of events. The other witness could have contradicted her testimony rather than supporting her assertions. We also note that the defendant was aided by the testimony of the bank teller, as to one part of her testimony,
We find that the State's comments were directed to the weight of their entire case and the corroboration of Poullard's testimony. We do not find these comments indicate the State's intent to refer to the defendant's failure to testify. Accordingly, we find no error.
By this assignment, the defendant argues that the trial court erred by admitting highly prejudicial other crimes evidence. Specifically, the defendant refers to the evidence of events alleged to have occurred in St. Martin Parish; specifically, the allegation that the defendant taped the victim's face and body and threw him into a body of water. The defendant argues that such evidence was not necessary to prove the charged offenses of aggravated kidnapping and armed robbery or to accurately present the State's case and that the evidence was highly prejudicial.
Although evidence of other crimes, wrongs, or acts committed by a defendant is generally inadmissible, La. Code Evid. art. 404(B)(1) provides that evidence of other acts is admissible when "it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." This provision is the codification of the principle of res gestae. "Evidence admissible under the res gestae exception to the general inadmissibility of other crimes evidence is not subject to any notice requirements." State v. Velez, 588 So.2d 116, 128 (La.App. 3 Cir.1991), writ denied, 592 So.2d 408 (La.1992), certiorari denied, 505 U.S. 1220, 112 S.Ct. 3031, 120 L.Ed.2d 901 (1992) citing State v. Prieur, 277 So.2d 126 (La.1973).
In State v. Coates, 27,287 (La.App. 2 Cir. 9/27/95); 661 So.2d 571, writ denied, 95-2613 (La.2/28/96); 668 So.2d 365, the defendant and his accomplices brutally beat and kidnapped the victim in one parish, and drove to another parish where he was beaten again and eventually killed. Evidence of the death was introduced during the defendant's trial for kidnapping. Citing La. Code Evid. art. 404(B)(1), the second circuit held the evidence of the victim's death was admissible as the events constituted one continuing transaction, and the events involving the homicide and the kidnapping occurred in close time and proximity with one another.
We conclude that the evidence of the possible killing of Clark in St. Martin Parish was admissible under La. Code Evid. art. 404(B)(1). The kidnapping of Clark, a charged offense, was a continuing event which ended in St. Martin Parish. The State would have had difficulty in fully presenting its case without reference to the events alleged to have taken place in St. Martin Parish.
In brief, the State cites State v. Jackson, 450 So.2d 621 (La.1984), for the proposition that res gestae evidence is not subject to the general La.Code Evid. art. 403 balancing test. However, Jackson was decided under former La.R.S. 15:447 before the enactment of the Evidence Code and Article 404(B)(1). The current jurisprudence holds that under Article 404(B)(1) "[i]t is no longer true that whatever forms part of the res gestae is admissible, and such evidence remains subject to the balancing test of La. Code Evid. Ann. art. 403 (West 1994)." State v. Smith, 94-1502, p. 6 (La.App. 4 Cir. 1/19/95); 649 So.2d 1078, 1083, citing Authors' Note to Article 404(B), Handbook on Louisiana Evidence Law, Pugh, Force, Rault, and Triche (1994 ed.). See also, State v. McGuire, 577 So.2d 1120 (La.App. 1 Cir.), writ denied, 581 So.2d 704 (La.1991). Therefore, the evidence at issue which constituted part of the res gestae of a charged offense is subject to the balancing test of La.Code Evid. art. 403. Nevertheless, the evidence of the events which transpired in St. Martin Parish was highly relevant to the charged crime of aggravated kidnapping. We conclude that the probative value of the evidence outweighed any prejudicial effect.
By this assignment, the defendant contends the trial court erred in sentencing him. The defendant was sentenced to serve life imprisonment at hard labor without benefit
The defendant first maintains that the trial court did not comply with La.Code Crim.P. art. 894.1 by failing to consider any mitigating factors. The defendant does not list any mitigating factors in his memorandum, nor did he attempt to present any mitigating evidence at his sentencing hearing.
Testimony at trial indicated that the defendant was a drug addict and was under the influence of crack cocaine when the crimes were committed. Although the trial court did not note this point at sentencing, the court thoroughly articulated its reasons for sentencing and the many aggravating factors which the court considered relevant. The trial court recognized the defendant's past criminal history, two felonies and ten misdemeanors during the previous eight-year period, with convictions for crimes such as shoplifting and burglary. The trial court observed the violent nature of the crimes now under review, which it deemed "vicious, brutal, and savage," and the defendant's apparent lack of remorse at trial. The court recognized the harm to the victim's family and noted that Clark had not been seen since the time of the crimes. In the opinion of the trial court, a strict sentence was required to prevent the defendant from committing future crimes. Given this articulation, we conclude that the trial court sufficiently complied with Article 894.1.
Next, the defendant asserts that the imposition of consecutive sentences was improper.
Due to the consecutiveness of his sentences, the defendant will serve a mandatory life sentence plus one hundred fifty years. If a defendant is "convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively." La.Code Crim.P. art. 883. As the present crimes were based on a common scheme or plan, concurrent sentences would have normally been imposed. However, it is within the discretion of the trial court to impose consecutive sentences.
The trial court did not specifically state its reasons for imposing consecutive sentences. However, the court in general terms stated its intent to impose strict sentences commensurate with the violent nature of the present crimes and to ensure the defendant did not commit future crimes. As previously discussed, the court thoroughly articulated the aggravating factors present in this case. We further note that the fifty year sentences imposed for each of the armed robbery convictions is a mid-range sentence, considering that, theoretically, the defendant could have been sentenced to three separate ninety-nine year sentences. Accordingly, we do not find that the trial court abused its discretion.
For the foregoing reasons, the convictions and sentences of the defendant, Dexter O'Neal Arvie, are affirmed.
