Louisiana Case Law


STATE v. MAPES, 2006 KA 1071 (La.App. 1 Cir. 12-28-2006)
1071. Court of Appeal of Louisiana, First Circuit.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appealed from the Twenty-Second Judicial
District Court In and for the Parish of St. Tammany,
Louisiana Trial Court Number 390,319 Honorable Reginald T.
Badeaux, III, Judge.

Walter P. Reed, District Attorney, Covington, LA and
Kathryn Landry, Baton Rouge, LA, Attorneys for State
— Appellee.

Holli Herrle-Castillo, Marrero, LA, Attorney for Defendant
— Appellant Donald Ray Mapes, Jr.



Donald Ray Mapes, Jr., the defendant, was charged by bill
of information with one count of first degree robbery, a
violation of La. R.S. 14:64.1. The defendant pled not
guilty and was tried before a jury. The jury determined the
defendant was guilty as charged. The State instituted
habitual offender proceedings. Following a hearing, the
trial court adjudicated the defendant a second felony
habitual offender and sentenced him to serve twenty years
at hard labor without benefit of probation or suspension of

The defendant appeals. We affirm.


Shortly before 2:00 a.m., on September 19, 2004, Detective
Bobby Juge of the St. Tammany Parish Sheriffs Office was
waiting for his partner, Detective Melissa Sperling, to
return with a signed search warrant for a residence in the
4700 block of Pontchartrain Drive. Detective Juge had just
returned from purchasing soft drinks at the Northshore
Convenience Store for himself and the other policemen who
were waiting with him. Soon thereafter, Detective Sperling
returned with the signed warrant. As the two detectives and
Deputy Lewis Sanders prepared to execute the warrant, their
dispatcher informed them that an armed robbery was in
progress at the Northshore Convenience Store. Deputy Sanders
went to the scene of the armed robbery, while the two
detectives began to ride around the area in their unmarked
unit. While riding in the area, the detectives received a
call that a white male suspect was headed northbound on
Pontchartrain Drive.

The initial description Detective Juge received regarding
the suspect was that he was a white male, five feet tall,
wearing a blue shirt, jean shorts, and a red ski mask over
his head. After Deputy Sanders arrived at the store, the
police received another call from the dispatcher relaying
that an individual had just reported a subject in a red
shirt and jeans running northbound away from the store. At
that point, Deputy Sanders recovered a red ski mask lying
on the ground in a weeded area near the grocery store.

As Detective Juge drove his unmarked unit along
Pontchartrain Drive looking in a weeded area near the
waterway, he heard someone yell at him, “He’s behind the
truck.” Detective Juge encountered the defendant in a
weeded area behind a vehicle parked along the roadway.
Detective Juge placed the defendant in handcuffs and read
the defendant his Miranda rights. Detective Juge noticed a
bulge in the defendant’s front pocket. Detective Juge asked
the defendant if he had any weapons or things that could
hurt the police, and the defendant replied that the bulge
was his money, and that he had just left the store. The
defendant later told the police that “I asked the cashier
for money, he gave it to me.”

Detective Juge reached into the defendant’s pocket to
recover the contents and removed a wad of cash. The cash
was determined to be $192.00, composed of ten ten-dollar
bills; seven five-dollar bills; and fifty-eight one-dollar
bills. According to Detective Juge, in his experience,
convenience stores did not keep twenty-dollar bills in the
cash drawers.

Detective Juge also recovered a rubber band around a small
amount of money, the defendant’s identification, and some
business cards from the defendant’s other pocket. Detective
Juge then went to interview Thomas Porche, who was the
clerk working at the convenience store that had just been

Thomas Porche, a seventy-year-old retiree, worked part-time
at the Northshore Convenience Store. Porche usually worked
the 11:00 p.m. to 7:00 a.m. shift. According to Porche, he
was folding money when the robber entered the store wearing
a ski mask. Porche initially thought the robber was playing
a joke on him because two weeks prior to this night, one of
the store’s regular customers had walked in with his shirt
covering his face. Porche told the robber to get out, stop
playing around, and then he continued folding money.

Porche realized that the robber had bad intentions when the
robber told him, “Give me the money or I’ll shoot you,
don’t make me shoot you old man.” Porche handed the
defendant the money from the register and the defendant
ordered him to get on the floor and not to call the police.
Porche testified that he thought the robber had a gun and
he feared for his life. As Porche lay on the floor, he
could see the robber’s feet and knew that he had left the
store. Porche then phoned the police and reported the

Porche’s initial description of the robber described him as
wearing a maroon ski mask, blue shirt, and cut-off shorts.
Using the color codes on the door of the convenience store,
Porche estimated the robber was approximately five feet
four inches tall and had a stocky build.

Porche testified that the video surveillance tapes
introduced by the State were an accurate reflection of what
occurred during the robbery.

Within fifteen to twenty minutes of Porche’s report of the
robbery, Detective Juge put Porche in his unit and drove to
where the defendant was detained in the back of a police
car. Porche was able to view the defendant without getting
out of the unmarked unit and immediately identified
defendant as the robber. The defendant was wearing jean
shorts and a red shirt.

The defendant did not testify at trial.


In defendant’s first assignment of error, he argues that
the trial court’s denial of his motion for continuance
prevented him from being able to obtain private counsel and
therefore violated his Sixth Amendment right to counsel.

A motion for a continuance shall be in writing and shall
allege specifically the grounds upon which it is based. La.
C.Cr.P. art. 707. The granting or denial of a motion for
continuance rests within the sound discretion of the trial
court, and its ruling will not be disturbed on appeal
absent a showing of a clear abuse of discretion. The denial
of a motion for a continuance is not reversible absent a
showing of prejudice. State v. Simon, 607 So.2d 793, 798
(La.App. 1st Cir. 1992), writ denied, 612 So.2d 77 (La.
1993), overruled on other grounds by State v. Celestine,
95-1393 (La. 1/26/96), 671 So.2d 896 (per curiam).

An oral motion for a continuance presents nothing for
review on appeal. However, where the occurrences that
allegedly make the continuance necessary arose
unexpectedly, and the defense had no opportunity to prepare
a written motion, an appellate court may review the denial
of the motion. Simon, 607 So.2d at 798.

The right to counsel cannot be manipulated to obstruct the
orderly procedure of the courts and cannot be used to
interfere with the fair administration of justice. While
the right to counsel of choice in a criminal trial is
guaranteed by the United States and Louisiana
Constitutions, there is no constitutional right to make a
new choice on the date a trial is scheduled to begin, with
the attendant necessity of a continuance and its disrupting
implications to the orderly trial of cases. The right to
counsel of choice must be exercised at a reasonable time,
in a reasonable manner, and at an appropriate stage within
the procedural framework of the criminal justice system of
which it is a part. Once the day of trial has arrived, the
question of withdrawal of counsel rests largely within the
discretion of the trial court. The Louisiana Supreme Court
has frequently upheld the trial court’s denial of motions
for a continuance made on the day of trial when the
defendant is dissatisfied with his present attorney but had
ample opportunity to retain private counsel. Simon, 607
So.2d at 798.

The defendant was arrested on September 19, 2004. The bill
of information charging the defendant with first degree
robbery was filed on December 6, 2004. Although the
defendant was originally scheduled to be arraigned on
January 4, 2005, he was not arraigned until May 13, 2005.
On July 18, 2005, the defendant appeared in court
represented by the public defender. The defendant informed
the trial court that he did not feel the public defender
was acting in his best interests, because the public
defender had only met with the defendant once for fifteen
minutes and had failed to provide him with the discovery he
had requested. The defendant informed the trial court that,
“I’m trying to hire me an attorney, my family.”

The public defender explained that he does not provide an
incarcerated defendant with a copy of discovery because
other people in jail can access it, review defendant’s
file, and may become familiar enough to make up a story in
an attempt to negotiate time off their record. Due to such
previous bad experiences, the public defender said he goes
over the discovery with his clients, but never leaves the
documents at the jail.

The trial court explained to the defendant that he did not
have a choice of attorney appointed to represent him. In
response to the defendant’s statement that he wanted to
fire the public defender, the trial court stated that the
defendant would either have to represent himself or hire a
private attorney. The defendant responded that his sister
was planning to hire a private attorney for him. The trial
court informed the defendant that they would pick a jury
and proceed with trial. The defendant then moved for a
continuance and the trial court denied the motion.

After reviewing the record, we cannot say the trial court
abused its discretion in denying the defendant’s oral
motion for a continuance. The defendant had been in jail
for ten months prior to trial and had made no attempt to
hire his own counsel or to inform the court that he was
dissatisfied with his public defender until the morning of
trial. Moreover, the defendant failed to specify a basis
for prejudice by the public defender’s representation of
him at trial. Under these circumstances, the trial court
did not err in denying the motion to continue.

This assignment of error is without merit.


The defendant argues the evidence is insufficient to
support his conviction, specifically, that the State
presented insufficient evidence identifying him as the
perpetrator of this crime.

The standard of review for the sufficiency of evidence to
uphold a conviction is whether or not, viewing the evidence
in the light most favorable to the prosecution, a rational
trier of fact could conclude that the State proved the
essential elements of the crime beyond a reasonable doubt
and the defendant’s identity as the perpetrator. See La.
C.Cr.P. art. 821; Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our standard of
review is an objective standard for testing the overall
evidence, both direct and circumstantial, for reasonable
doubt. When analyzing circumstantial evidence, La. R.S.
15:438 provides that the fact finder must be satisfied that
the overall evidence excludes every reasonable hypothesis
of innocence. State v. Williams, 2001-0944 (La.App. 1st
Cir. 12/28/01), 804 So.2d 932, 939, writ denied. 2002-0399
(La. 2/14/03), 836 So.2d 135. Where the defendant disputes
his identity as the perpetrator, the State must negate any
reasonable probability of misidentification. State v.
Jones, 94-1098 (La.App. 1st Cir. 6/23/95), 658 So.2d 307,
311, writ denied, 95-2280 (La. 1/12/96), 666 So.2d 320.

As the trier of fact, the jury was free to accept or
reject, in whole or in part, the testimony of any witness.
Furthermore, where there is conflicting testimony about
factual matters, the resolution of which depends upon a
determination of the credibility of the witness, the matter
is one of the weight of the evidence, not its sufficiency.
State v. Probst, 623 So.2d 79, 83 (La.App. 1st Cir.), writ
denied, 629 So.2dll67(La. 1993).

Louisiana Revised Statutes 14:64.1(A) defines first degree
robbery 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, when the offender leads the victim to
reasonably believe he is armed with a dangerous weapon.

The defendant argues that there were discrepancies in the
evidence presented by the State that should have created
reasonable doubt as to his identity as the perpetrator.
Specifically, defendant argues that Porche never saw the
robber’s face and described him as wearing a blue shirt and
being five feet tall. Moreover, the amount of money
recovered from defendant was $192.00, while the amount
missing from the cash register was determined to be

The jury’s verdict indicates that these discrepancies were
excusable under the circumstances of the robbery. The
defendant was found attempting to conceal himself in a
weeded area not far from the location of the robbery within
minutes of the crime being reported. Porche identified the
defendant as the robber no more than twenty minutes after
he had been robbed and testified that the shape of
defendant’s head and shoulders were consistent with the
person who robbed him. Detective Juge explained that in his
experience twenty-dollar denominations were not usually
kept in the cash drawers of convenience stores. Porche also
testified that the drawer had no twenty-dollar bill
denominations because he had already placed those in the
safe. Moreover, the defendant admitted to being in the
store and claimed the clerk gave him the money.

Viewing the evidence in the light most favorable to the
prosecution, we find the evidence sufficiently supports
defendant’s conviction for first degree robbery.

This assignment of error is without merit.

For the foregoing reasons, the defendant’s conviction,
habitual offender adjudication, and sentence are affirmed.


[fn1] The underlying offense, La. R.S. 14:64.1 controls the
defendant’s eligibility for parole. However, the trial
court’s failure to indicate the defendant was not eligible
for parole does not give him such eligibility. La. R.S.