Judge Rosemary Ledet
In this criminal case, the defendant, Darrius Copelin, appeals his conviction and sentence for one count of armed robbery with a firearm, a violation of La. R.S. 14:64.3, and one count of possession of a firearm by a felon, a violation of La. R.S. 14:95.1. For the reasons that follow, we affirm his convictions and sentences. Nonetheless, because we find an error patent, we remand for the imposition of the mandatory fine required by La. R.S. 14:95.1.
On October 25, 2012, the State charged Mr. Copelin by bill of information with one count of armed robbery with a firearm and one count of possession of a firearm by a felon. This case was assigned Orleans Criminal District Court Case No. 513-845 "I". In the same bill of information, Mr. Copelin's girlfriend, Aisha Howard, was charged with being an accessory to the armed robbery. Before the case went to trial, the State filed a "Notice of Intent to Use Evidence of Similar Crimes, Wrongs, and/or Acts" — a Prieur motion.
On July 9, 2014, Mr. Copelin's first jury trial commenced. At his first trial, Mr. Copelin was allowed to represent himself pro se with the advice at trial of an attorney from the Orleans Public Defender — a form of hybrid representation. At the close of the first trial, the district court declared a mistrial based on the jury's inability to return a verdict. Thereafter, the State entered a nolle prosequi and dismissed all charges in Case No. 513-845 "I".
On October 22, 2014, the State reinstituted the same charges. This case was assigned Orleans Criminal District Court Case No. 522-255 "I". In the same bill of information, Ms. Howard was charged with being an accessory to the armed robbery. On October 24, 2014, Mr. Copelin was arraigned and pled not guilty. On November 7, 2014, Mr. Copelin filed a motion to quash on the grounds that the reinstitution of the charges constituted double jeopardy because he had previously been tried for the same offense. On November 17, 2014, the district court denied the motion to quash. This court denied Mr. Copelin's subsequent writ application. State v. Copelin, 14-0043 (La. App. 4 Cir. 1/16/15) (unpub.).
On May 4, 2015, the district court severed the two defendants — Mr. Copelin and Ms. Howard — for trial. On September 1, 2015, the district court ruled on a number of pre-trial motions. On the next day, the second jury trial commenced. As in the first trial, Mr. Copelin opted for a form of hybrid representation. The second trial lasted two days. The jury found Mr. Copelin guilty as charged on both counts. On October 9, 2015, the district court denied Mr. Copelin's motion for new trial. Mr. Copelin waived sentencing delays and was
Thereafter, the State filed a multiple offender bill of information as to the armed robbery count. The predicate offense was a 2002 federal armed robbery conviction.
This case arises out of an armed robbery that occurred on September 9, 2012, at around 1:30 a.m., at the Homedale Inn, a neighborhood bar located near City Park in New Orleans, Louisiana. According to witnesses, a man wearing gloves and a ski mask and brandishing a gun walked into the bar. The man threw a back pack across the bar and demanded that the bartender "fill it up." The bartender complied with the demand, placing about $1,000 in the backpack. The man then backed out of the bar and fled on foot into the surrounding neighborhood. During the course of the robbery, the bar owner managed to hit the silent alarm located on the side of the cash register, which calls the police. As a result, the New Orleans Police Department ("NOPD") arrived within minutes after the robber fled.
The NOPD linked Mr. Copelin to the crime through a vehicle registered to his girlfriend's grandmother that was found parked near the bar. The vehicle was parked away from the curb, impeding traffic, in the area that the robber fled. Mr. Copelin's wallet and cell phone were found in the vehicle. When the officers ran Mr. Copelin's name, they discovered that he had a prior offense — a 2003 federal armed robbery conviction — and that he was released from federal prison nineteen days before the robbery of the bar.
A review of the record for errors patent reveals one. The district court failed to impose the mandatory fine as required by the sentencing provision of La. R.S. 14:95.1.
Mr. Copelin's first assignment of error is that the mistrial the district court declared at the end of his first trial was not manifestly necessary and was undertaken without his consent; thus, he contends, his second trial and conviction violate state and federal principles of double jeopardy. To place this issue in context, we outline the events that resulted in the district court declaring a mistrial.
At the end of Mr. Copelin's first trial, which lasted two days, jury deliberations commenced at 6:43 p.m. At 11:21 p.m. the trial court summoned the jury to courtroom and initiated the following colloquy:
The transcript reflects that the jury left the courtroom at 11:22 p.m. and returned seven minutes later — at 11:29 p.m. When the jury returned, the following colloquy transpired:
At this juncture, Mr. Copelin neither objected nor sought judicial relief. As noted earlier in this opinion, Mr. Copelin first sought judicial relief after the prosecution was re-instituted by filing a pro se motion to quash the bill of information. In that motion, he argued that he was being placed in jeopardy twice because the State reinstituted the charges after the jury was unable to return a verdict on July 9, 2014, in Case No. 513-845 "I". In arguing that jeopardy attached, he compared the prior mistrial to a non-responsive verdict. Denying the motion to quash, the district court reasoned that "because the defendant was not acquitted in his earlier trial, double jeopardy is not implicated." This court denied Mr. Copelin's subsequent writ application, stating:
State v. Copelin, 14-0043 (La. App. 4 Cir 1/16/15) (unpub.).
Mr. Copelin's prior motion raising the double jeopardy issue presents several preliminary issues regarding whether the double jeopardy issue is properly before us on appeal.
The first issue is whether this court's denial of Mr. Copelin's writ application
Despite Mr. Copelin's failure to raise the exact issue presented here before the district court, the error is properly raised in this court. Double jeopardy is treated as a jurisdictional defect that may be raised at any time. See La. C.Cr.P. art. 594 (providing that "[d]ouble jeopardy may be raised at any time"); see also State v. Earnest, 95-1689, p. 3 (La.App. 3 Cir. 5/8/96), 673 So.2d 1341, 1343 (noting that double jeopardy is a "jurisdictional defect," that is, one that calls into question the sitting court's power to hear the case" and citing State v. Dubaz, 468 So.2d 554 (La. 1985)). "Louisiana courts have repeatedly held that even an unqualified guilty plea does not bar a subsequent double jeopardy claim." Earnest, supra (citing State ex rel. Adams v. Butler, 558 So.2d 552 (La. 1990)).
Although La. C.Cr.P. art. 594 also provides that double jeopardy may be raised "only once," we decline to invoke this limitation to bar review of Mr. Copelin's claim for two reasons. First, it is unclear this limitation applies to an unrelated claim. Second, if invoked here, this limitation could create a separate issue under the United States Constitution.
Both the United States and the Louisiana Constitution afford double jeopardy protection; the Fifth Amendment to the United States Constitution and Article I, § 15 of the Louisiana Constitution prohibit the government from twice placing a person in jeopardy for the same offense. Double jeopardy protection is codified in La. C.Cr.P. Art. 591, which provides that "[n]o person shall be twice put in jeopardy of life or liberty for the same offense, except,... where there has been a mistrial legally ordered under the provisions of Article 775."
In State v. Encalarde, 579 So.2d 990, 991 (La. App. 4th Cir. 1990), which Mr. Copelin cites as dispositive, this court addressed the issue of whether the trial court erred by granting a mistrial under La. C.Cr.P. art. 775 (2) — "the jury is unable to agree upon a verdict." Summarizing the applicable statutory and jurisprudential principles, this court stated the following:
Encalarde, 579 So.2d at 991.
In Encalarde, the facts regarding the jury deliberations were as follows:
Id. at 990-91.
In Encalarde, we noted that there was no Louisiana case addressing the issue presented. Citing the jurisprudence from other state courts and the federal courts addressing the issue, we developed the following four-factor test to assess the trial court's decision to grant a mistrial:
Id. at 991.
Applying the above four-factor test to the facts in Encalarde, we reasoned as follows:
Furthermore, we noted:
Id. Based on the above analysis, we held that the trial court erred in granting the mistrial over the defendant's objection. We thus granted the defendant's motion to quash based on double jeopardy.
Mr. Copelin contends that the circumstances here present a stronger case than in Encalarde for concluding that the district court erred when it declared a mistrial. He points out that the jury's note did not suggest that that they were deadlocked; rather, their note suggested that they would be unable to reach "a final decision tonight." He contends that when the district court asked the foreman whether further deliberations would be beneficial in reaching a verdict, it was reasonable for the foreman to believe that the question was posed in the context of whether further deliberations would be beneficial in reaching a verdict that night. Mr. Copelin thus suggests that this court should judge the district court's decision to declare a mistrial against the backdrop of a jury that never indicated it was deadlocked.
According to Mr. Copelin, the district court, at best, could have found that the jury was unable to reach a verdict "that night." He emphasizes that only seven minutes before the district court declared a mistrial, the foreman had indicated that the jury was not deadlocked and that further deliberations would be beneficial. He also emphasizes that the district court failed to consult with individual jurors and failed to consult with him on possible alternatives to declaring a mistrial. Mr. Copelin thus submits that the district court failed to scrupulously determine that the jury was genuinely deadlocked. Given the totality of the circumstances, he contends that the district court abused its discretion by declaring a mistrial rather than dismissing the jury for the night with instructions to return the next day to resume their deliberations.
The State does not address the Encalarde case.
In his reply brief to this court, Mr. Copelin responds that it is doubtful that Article 775.1 applies to mistrial orders
In support, Mr. Copelin quotes the Louisiana Supreme Court's holding in Joseph that "the failure of the defendant to object to a mistrial which he had not sought and from which he [h]as not benefitted [is] inconsequential since once a mistrial is declared the trial is over"; in such a case, "the absence of a contemporaneous objection would not bar a plea of double jeopardy urged at the commencement of a second trial." 434 So.2d at 1059-60 (citing Simpson, 371 So.2d at 736).
There is scant jurisprudence construing, or even citing, Article 775.1, which was enacted in 2004.
Simpson, 371 So.2d at 738. In Joseph, the Supreme Court also commented that "a function of the contemporaneous objection rule is to facilitate appellate review of adverse lower court rulings. Since appellate review does not in the normal course follow a trial aborted by the grant of a mistrial, this purpose is not served by the noting of an objection to the granting of a mistrial." 434 So.2d at 1060.
Read together, the Simpson and Joseph cases have the untenable effect of making the declaration of a mistrial insusceptible to review and thus create a predicament under which an aggrieved party must anticipate the declaration of a mistrial. Stated otherwise, these cases hold that a trial court's declaration of a mistrial is an immediate, irrevocable disposition that cannot be undone or recalled. By enacting Article 775.1, which became effective in 2004 (La. Acts 2004, No. 413 § 1), the Louisiana Legislature, in effect, abrogated the holdings in Simpson and Joseph.
By imposing an automatic stay when invoked, Article 775.1 precludes a trial court from simultaneously granting a mistrial and dismissing the jury and thereby depriving the aggrieved party from seeking appellate review. Indeed, the apparent purpose for enacting Article 775.1 was to create a procedural device for the aggrieved party to preserve the status quo pending an appellate court's ruling on the issue. An aggrieved party's remedy is not to seek reconsideration of the issue before the trial court; rather, their remedy is to request a twenty-four hour automatic stay of the proceedings — thereby delaying the release of the jury — in order to file an emergency writ application with the appropriate appellate court and, if necessary, the Louisiana Supreme Court.
The Louisiana Supreme Court has repeatedly held that an irregularity or error cannot be availed of after the verdict unless it was objected to at the time it occurred; and, as enacted, Article 775.1 preserves the contemporaneous objection rule with respect to the declaration of a mistrial. See La. C.Cr.P. art. 841; State v. Lanclos, 07-0082 (La. 4/8/08), 980 So.2d 643.
Contrary to Mr. Copelin's contention, if he had invoked Article 775.1, the district court could not have simultaneously granted a mistrial and discharged the jury. If he had invoked Article 775.1, it would have resulted in an automatic stay; the district court would have been mandated to instruct the jury that its ruling granting the mistrial was not final. As a result, the jury would have been ordered to return the next day for the appellate court's ruling on the emergency writ. Given Mr. Copelin failed to object or to invoke the appropriate remedy provided for by Article 775.1, we find the assignment of error was not preserved for review.
Mr. Copelin's second, and final, assignment of error is that the district court erred in allowing the State to introduce impermissible other crimes evidence. The general rule in Louisiana is that "evidence the accused committed crimes, wrongs or acts, other than the one charged is inadmissible when its only purpose is to prove the defendant's character and therefore his
The introduction of other crimes evidence is governed by La. C.E. art. 404(A), which provides (with exceptions) that "[e]vidence of a person's character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Likewise, La. C.E. art. 404(B) prohibits evidence of other crimes, wrongs or acts to prove the character of a person. Such evidence, however, is admissible if the State proves an independent reason. Id. The exception is codified in La. C.E. art. 404(B)(1), which provides as follows:
The Louisiana Supreme Court in State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), ___ So.3d ___, 2016 WL 7030750, enumerated the following principles that govern the introduction of other crimes evidence in this state:
Id. A trial court's determination of admissibility of other crimes evidence is reviewed under an abuse of discretion standard. Garcia, 09-1578 at p. 55, 108 So.3d at 39.
In its Prieur notice that it filed in the earlier case, Case No. 513-845 "I", the State set forth the other crimes evidence it intended to introduce as follows:
In in its Prieur notice, the State argued that both the 2002 bank robbery and the instant 2012 bar robbery were factually similar. The State cited three things the two crimes had in common — in both, the robber brandished a gun; in both, the robber wore a ski mask; and in both, the robber fled the scene after putting a gun to the victim's head. Following a hearing, the district court in the first case found the Prieur evidence would "serve a purpose during the course of the trial" and that the evidence was more probative than prejudicial. The district court thus held the evidence was admissible. Mr. Copelin noted his objection. This issue was not raised again until the instant appeal.
The State counters that the other crimes evidence was properly admitted. In support, the State, in its appellate brief, offers the following reasons supporting its introduction of the other crimes evidence:
Intent is not at issue here; as Mr. Copelin points out, "[t]he person who entered the bar, wearing a mask, brandishing a gun, and demanding money obviously intended to commit the crime." Likewise, Mr. Copelin's access to a weapon and his lack of hesitation to use one is not at issue here; as Mr. Copelin points out, he "did not defend himself by claiming he had no access to weapons or did not know how to point a gun at somebody." Thus, only two of the four grounds enumerated by the State — identity (referred to as modus operandi) and system or pattern (based on the res gestae exception) — require analysis. We thus confine our analysis to those two exceptions, which we address below.
The Louisiana Supreme Court has noted that it "has long sanctioned the use of other crimes evidence to show modus operandi, as it bears on the question of identity, when the prior crime is so distinctively similar to the one charged, especially in terms of time, place, and manner of commission, one may reasonably infer the same person is the perpetrator in both instances." Garcia, 09-1578 at pp. 56-57, 108 So.3d at 39-40; State v. Lee, 05-2098, pp. 44-45 (La. 1/16/08), 976 So.2d 109, 139. The Supreme Court, however, has cautioned that "[t]he identity exception to inadmissibility under Article 404 B must be limited to cases in which the crimes are genuinely distinctive; otherwise, the rule may be swallowed up with identity evidence exceptions. State v. Bell, 99-3278, p. 5 (La. 12/8/00), 776 So.2d 418, 421 (citing George W. Pugh et al, HANDBOOK ON LOUISIANA EVIDENCE LAW, Official Comments to Article 404(B), cmt. (6)(1988)).
Mr. Copelin contends that the similarities between the two offenses fall far short of establishing a unique modus operandi. We agree. The two offenses are distinctively dissimilar. One involved a bank robbery early in the morning; the other, a bar robbery late at night. In the previous offense, Mr. Copelin, armed with a shotgun, along with two accomplices, attempted to gain access to a bank vault by threatening an employee who they knew would arrive well before any other employees and before the bank opened for business. Mr. Copelin also used his knowledge of the employee's family, including the high school his daughter attended, in an attempt to force the employee to open the vault. By contrast, the instant offense involved the single-handed, late-night robbery of a crowded bar. The modus operandi of these two offenses are distinctly different.
Furthermore, as Mr. Copelin contends, the similarities offered by the State, especially the use of a gun and the wearing of a mask, fail to set Mr. Copelin's modus operandi apart from countless other robberies. See State v. Williams, 99-2576, p. 11 (La. App. 1 Cir. 9/22/00), 769 So.2d 730, 736-37 (noting that "it is beyond question that the use of a handgun is a common aspect of many armed robberies.").
The res gestae exception is codified in La. C.E. art. 404(B)(1), which provides for admission of evidence of other crimes "when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." La. C.E. art. 404(B)(1); Brown, 03-1616 at p. 10, 871 So.2d at 1249 (noting that "[t]he last sentence of La. C.E. art. 404(B)(1) is the codification of the principle of res gestae."). Simply put, "[r]es gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them." State
Explaining the res gestae exception, the Louisiana Supreme Court has noted:
State v. Haarala, 398 So.2d 1093, 1097 (La. 1981).
According to the State, the story the evidence was needed to complete is that Mr. Copelin was a professional robber and that he quickly returned to a pattern of crime shortly after his release from federal prison. Mr. Copelin counters that the charged bar robbery cannot reasonably be regarded as part of system or pattern stemming from a single bank robbery committed more than a decade earlier. We agree. Although Mr. Copelin was released from prison days before the bar robbery, the bank robbery at issue occurred a decade earlier. Given the temporal separation between the two crimes, we find the State's reliance on the res gestae exception is misplaced.
Regardless, the erroneous admission of other crimes evidence is subject to a harmless error analysis. See La. C.Cr.P. art. 921; State v. Johnson, 94-1379, pp. 14-15 (La. 11/27/95), 664 So.2d 94, 100-01 (errors leading to improper admission of evidence subject to harmless-error analysis; error harmless if verdict "surely unattributable" to error) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).
In determining whether an error is harmless in a given case, a host of factors, readily accessible to reviewing courts, are considered. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Factors to be considered include the importance of the evidence to the State's case, the presence or absence of additional evidence corroborating or contradicting the evidence, and the overall strength of the State's case. Id.; State v. Harris, 97-0300, p. 3 (La. 4/14/98), 711 So.2d 266, 269.
To provide a background for analyzing the harmless error issue, we first outline the evidence presented at trial. We divide our summary of the evidence into four categories: (i) the prior offense, (ii) victims of the instant offense, (iii) the investigation of the instant offense, and (iv) the audio evidence of the instant offense. We briefly summarize the testimony regarding each category.
FBI Special Agent Sandra Zulli testified that, in October 2002, she investigated a robbery of a bank located on Canal Street in New Orleans. Mr. Copelin provided Agent Zulli with a statement regarding his role in the crime. Mr. Copelin stated that he planned the robbery; that he solicited a friend to assist him; and that his friend, in turn, solicited a third person to participate in the robbery. After casing the location, Mr. Copelin learned that a financial consultant for the bank would routinely arrive at the bank before anyone else. The consultant's routine was to drop his daughter off at school and then proceed to work.
During the robbery, Mr. Copelin wore a long, dark jacket; a ski mask; and latex gloves. He carried a twelve-gauge shotgun, which he concealed beneath his jacket. Apparently, Mr. Copelin and his accomplice, who carried a glock semi-automatic pistol, followed the consultant into the bank as he entered it that morning. The men demanded that the consultant open the vault, but the consultant told them that he did not have a key. He explained to them that he could not open the vault until the two bank managers arrived at 8:30 a.m. At this point, Mr. Copelin put a gun to the back of the consultant's head and told him that they knew he had the keys. He told him that they knew that his daughter went to Mount Carmel Academy, that he had a wife, and that the next time he saw them they would have his wife and child. The consultant, however, did not have the keys.
At this point, the men picked up the consultant and brought him to the rear of the bank. The consultant's office was located upstairs. Mr. Copelin stayed at bottom of the stairs while his accomplice brought the consultant up the stairs to his office. After telling his accomplice that they needed to go, Mr. Copelin fled through the rear door of the bank. He ran through the adjoining neighborhood and hid. The NOPD responded to an alarm at the bank; an exhaustive chase for the perpetrators ensued. The NOPD located Mr. Copelin. He told Agent Zulli and the officers where he hid the gun and his clothes.
Agent Jeffrey Hurm, a federal probation officer, testified that he supervised Mr. Copelin after he was released from serving time in federal prison on the 2003 armed robbery conviction. Agent Hurm testified that Mr. Copelin pled guilty on May 29, 2003, to federal charges of bank robbery and brandishing a firearm during a crime of violence. He explained that Mr. Copelin
Mr. Copelin was on supervised released for approximately two and one-half weeks before being arrested for the robbery of the Homedale Inn. Agent Hurm testified that after he was notified of Mr. Copelin's arrest for a state armed robbery charge, he requested that a federal district court judge issue a warrant for Mr. Copelin to be held as a detainer, which the judge signed.
Both the bartender, Jennifer Gostl, and the bar owner, Perry Putfark, testified at trial regarding the details of the robbery. Ms. Gostl testified that she had been working at the Homedale Inn for several years. She described the bar as "neighborhood-friendly bar" that is "kind of like an extension of most people's living room." Indeed, when the robber entered the bar, she initially thought it was a bad joke; however, as the robber got closer to her, she realized it was serious. She explained that the robber had the gun in her face and that he also put the gun up against the one of the patrons' head.
According to Ms. Gostl, the bar was busy on the night of the robbery. Mr. Putfark estimated that there were approximately fifteen to twenty patrons inside the bar at the time of the robbery. When the robber entered the bar at about 1:30 a.m., Ms. Gostl was standing at the end of the bar near the door and just a few feet from the robber; Mr. Putfark was at the end of the bar talking to a few customers. The robber threw a backpack towards the bar and said, "Fill it up." The backpack hit Mr. Putfark on the arm and fell to the ground. The robber bent down to pick up the backpack; when he came up, Mr. Putfark could see that he was holding a gun, which he described as a black semi-automatic pistol, "approximately 9-millimeter." The robber grabbed Mr. Putfark's sleeve to move him out of the way so he could move closer to the bar. Mr. Putfark said "okay," and he walked past the robber with his hands up and then towards the other end of the bar. Mr. Putfark then went behind the bar, opened a cabinet, and removed the gun he kept there, which he held to his side.
Contemporaneously, Ms. Gostl complied with robber's demands; she brought the knapsack to the cash register and filled it up with money (about $1,000). While Ms. Gostl was at the register, Mr. Putfark approached the register and triggered the silent alarm located on the side of the cash register, which calls the police. After Ms. Gostl handed the knapsack with the money to the robber, he backed up out the door while pointing the gun at everyone inside and telling them "[y]ou-all don't mess with me and I won't mess with you all." The robber then fled. Ms. Gostl called 911.
Meanwhile, the patrons yelled for Mr. Putfark to lock the door, which he did. Within seconds, however, Mr. Putfark opened the door and went outside to see in which direction the robber had fled. After he exited the bar, the robber turned left and ran in the direction of Hawthorne Street where he turned right. At about that time, a police car pulled up.
Deputy Kevin Wheeler was the first officer to arrive on the scene. He testified that on September 9, 2012, he was an NOPD officer working the Lakeview Crime Prevention assignment when he received a call over his police radio that the Homedale Inn had been robbed. At that time, he was only about three quarters of a mile from the Homedale Inn, which was located on
According to Deputy Wheeler, the vehicle was parked away from the curb and thus impeding traffic. The vehicle had a temporary license plate in the window, the driver's seat was fully reclined, and the keys were on the dash. The manner in which the vehicle was parked, the temporary license plate, coupled with and the manner in which the keys were left on the dash caused Deputy Wheeler to be suspicious of its presence so close to the scene of the robbery. Deputy Wheeler canvassed the area and knocked on doors in the neighborhood to see if the vehicle belonged to anyone who lived in the area. None of the residents owned or were familiar with the vehicle. Deputy Wheeler touched the hood of the vehicle and felt that it was "more than warm"; the vehicle thus had just been parked there. At this point, Deputy Wheeler elected to have the vehicle towed because it was impeding traffic.
Before the vehicle was towed, Deputy Wheeler performed an inventory search. In the center console, he discovered a wallet containing Mr. Copelin's driver's license and other identification. He also located a watch and a cell phone inside a black case on the passenger seat. The vehicle was then towed and impounded. According to Officer Wheeler, if he had not been dispatched to the armed robbery and arrived at the scene in less than a minute, Mr. Copelin would have used the vehicle to escape.
The investigation of-the robbery was assigned to Detective Alfred Harris. Detective Harris was one of the next officers to arrive on the scene; he arrived approximately five to ten minutes after receiving the call. He spoke with the victims and obtained a description of the robber. He then relocated to the 5100 block of Hawthorne Street. There, he observed the vehicle impeding the flow of traffic; and he spoke with Officer Wheeler.
On the following day, Detective Harris learned that the vehicle had been reported stolen. He elected to conduct a follow-up investigation with the person who reported the vehicle stolen, Ms. Howard. (As discussed elsewhere, Ms. Howard was Mr. Copelin's girlfriend.) Detective Harris found the stolen vehicle report suspicious given the keys were found inside the vehicle. Before speaking with Ms. Howard, Detective Harris ran Mr. Copelin's name in the computer. He learned that Mr. Copelin had a prior conviction for a 2002 armed robbery and was incarcerated for several years following his 2003 conviction for that offense. Mr. Copelin had been released from federal prison only nineteen days before the bar robbery. Detective Harris, along with Detective Bianca DeIrish, then relocated to Ms. Howard's residence.
The detectives knocked on Ms. Howard's door and explained to her that they were there to follow up on her stolen vehicle report. Initially, Ms. Howard would not let them enter the residence; their initial conversation with her was carried out through the peephole. Eventually, Ms. Howard allowed the detectives into her residence. While the detectives were discussing the circumstances surrounding the disappearance of her vehicle, they heard rustling coming from the second floor.
Given his knowledge of Mr. Copelin's criminal history, Detective Harris alerted Detective DeIrish that they might be in danger and drew his weapon. The detectives then proceeded to climb the stairs to the second floor. At that point, they observed someone run across the landing into a bedroom and slam the door. Detective Harris requested backup assistance. Additional officers arrived on the scene within five to ten minutes. They proceeded up the stairs and were able to convince Mr. Copelin to come out. Both Mr. Copelin and Ms. Howard were transported to the station for further questioning. According to Detective Harris, neither was under arrest at that point. At the station, Ms. Howard provided a formal statement. Thereafter, Mr. Copelin was arrested for the armed robbery of the Homedale Inn.
Ms. Howard's paid defense attorney, Jake Lemmon, was called by the State as a witness at trial. Mr. Lemmon testified that Ms. Howard was charged not only with being an accessory to armed robbery of the Homedale Inn, but also with three counts of perjury.
Ms. Howard, who was the State's next witness, testified that she met Mr. Copelin at a gym and that she subsequently learned they were both in a "halfway house together" after being released from federal prison. She characterized their relationship as an intimate one.
Addressing the stolen vehicle, Ms. Howard testified that the vehicle was registered in her grandmother's name. She explained that she had possession of the vehicle on September 8, 2012, and that Mr. Copelin spent that night at her house. When they went to bed together, the vehicle was parked in her driveway. When she awoke around 2:00 a.m., neither Mr. Copelin nor the vehicle was there. She immediately attempted to call his cellphone, but he did not answer. Between 3:00 a.m. and 4:00 a.m., he called her collect from a payphone sometime; however, she was unable to accept the call. Later that morning, he called again. The first thing he said was "I f'd up." She asked him what was going on; he replied that he had to leave the vehicle. He asked her to come to get him, and he gave her directions to an address on Montegut Street. She testified that she was living in New Orleans East.
Ms. Howard borrowed a relative's car and drove to the Montegut Street address. When she arrived, Mr. Copelin exited the house holding a gun. He was wearing black shirt, black pants, and black shoes; she described his clothing as dirty. Mr. Copelin got into the car and crouched down as she drove. He directed her to a location in the Canal Boulevard area. He told her that if the car was still there, "I am good. If the car is gone, I'm f___." As they drove down the street in question, Mr. Copelin was leaning back in his seat peering out the window, but the car was gone.
According to Ms. Howard, Mr. Copelin told her that he was under a blue house for several hours that night. The blue house was located "maybe up the block, like, two houses off the corner" from the location where he had parked the car. Although he wanted to go under the blue house and retrieve the backpack he left there, Ms. Howard told him that she was not bringing him to go under a house to get money. Ms. Howard suggested to him that an undercover officer could be watching the house. She then brought Mr. Copelin back to the Montegut Street address, where she dropped him off. As they drove, Mr. Copelin told her to report the car stolen. He also told her that they needed to come up with a plan to avoid being arrested.
Following Mr. Copelin's instructions, Ms. Howard reported the vehicle as stolen later that day. She told the police that the keys were taken at a party. She also retrieved the vehicle from the auto pound. According to Ms. Howard, the police told her the vehicle was towed because it was parked illegally. When Mr. Copelin discovered that his cell phone and wallet were not in the vehicle, he instructed Ms. Howard to call the police to find out the whereabouts of his possessions. Ms. Howard, however, was unable to reach the investigating officer. Mr. Copelin and Ms. Howard then began plotting and formulated a story about him being at a strip club on the night of the crime and having the keys stolen from him.
As discussed earlier, the police found Mr. Copelin at Ms. Howard's residence and took both him and Ms. Howard into custody. After being advised of her rights, Ms. Howard gave a statement. In her statement, she informed the police that Mr. Copelin was involved in robbing a bar, that she picked him up from Montegut Street, and that she saw him with a handgun. After giving the statement; Ms. Howard was arrested and returned to federal prison for ten months because she violated her parole. While in federal prison, she learned that she had been charged with accessory after the fact to the armed robbery.
Jim Huey, an Orleans Parish Sherriff's Office employee, testified that he was the custodian of all recorded jail calls that inmates place while incarcerated. Mr. Huey identified a disc containing a recording of a call made by Mr. Copelin on September 11, 2012, and a call data sheet from the call. The recording was played for the jury.
Debra Adams, a 911 operator, identified an audio CD of the 911 calls resulting from the robbery that occurred at the Homedale Inn. It was played for the jury.
As noted earlier, the erroneous admission of other crimes evidence is subject to a harmless error analysis. In this case, the jury was entitled to hear about Mr. Copelin's prior offense — the 2003 armed robbery — in conjunction with the felon in possession of a firearm charge.
Mr. Copelin contends the introduction of the other crimes evidence was not harmless error. In support, he argues that his conviction turned largely on Ms. Howard's credibility. Continuing, he contends that if the jury decided that Ms. Howard's testimony was not credible "given her self-interested incentive to testify favorably for the State," the State could not convict him without considering his prior conviction. The evidence presented at trial belies this contention.
Both victims — Ms. Gostl and Mr. Putfark — testified that the Mr. Copelin's physical characteristics — his height, build, skin tone, eyes, and voice — exactly matched the unique physical characteristics of the robber. During Mr. Copelin's cross examination of them, acting as his own counsel, both victims all but positively identified Mr. Copelin at trial. Ms. Gostl described the robber as very tall, approximately six-three; very fit, thin, athletic build; and having a very dark complexion. She added that the robber wore a long-sleeved black shirt, black pants, and latex gloves underneath a pair of black gloves. On cross-examination, Mr. Copelin — acting as his own counsel — asked Ms. Gostl who robbed the Homedale Inn. She replied: "[i]t was a man that was your height, your build, your complexion, and had very similar eyes." Ms. Gostl, however, indicated that she could not say anything more because the robber wore a mask. Ms. Gostl, however, was able to see the robber's skin
Mr. Putfark similarly testified that the robber was wearing a black long sleeved shirt, black pants, and a wool knit cap with eye holes cut out pulled over his head. During cross examination by Mr. Copelin, Mr. Putfark acknowledged that he did not know who robbed the Homedale Inn and that it could have been anyone. On redirect, however, the following exchange occurred:
Likewise, Ms. Adams, the 911 operator, read the description of the perpetrator that was noted in connection with the 911 calls, which was as follows: "[b]lack male, tall, thin built, wearing knit cap/ski mask, black clothing, white surgical gloves, armed with black semi-automatic gun and carrying a back [sic] backpack. Subject ran on Hawthorne toward Florida."
Moreover, the unexplained presence of the vehicle containing Mr. Copelin's wallet, identification cards, cell phone, and watch along the path of his flight created an overwhelming combination of direct and circumstantial evidence against him. Mr. Copelin failed to present any evidence that might have led the jury to find merit in his claim that someone else stole the vehicle and committed the robbery.
Considering the strength of the evidence the State presented at trial against Mr. Copelin, we cannot conclude the jury verdict was attributable to the error of admitting the other crimes evidence. We thus conclude that the erroneous admission of the other crimes evidence was harmless error. This assignment is without merit.
For the foregoing reasons, we affirm the defendant's convictions and sentences; however, because we find a patent error, we remand for the imposition of the mandatory fine required by La. R.S. 14:95.1.