P. v. Motten
Filed 7/18/13 P. v. Motten CA2/3
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENYON DAKEITH
MOTTEN,
Defendant and Appellant.
B228663
(Los Angeles County
Super. Ct. No. TA109455)
APPEAL
from a judgment of the Superior
Court of
County,
Eleanor J. Hunter, Judge. Affirmed in part and reversed in part.
Morgan
H. Daly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
>
Appellant Kenyon Dakeith
Motten appeals from the judgment entered following his convictions by juries on
count 1 – second degree robbery (Pen.
Code, § 211), count 2 – attempted second degree robbery (Pen. Code, §§ 664,
211), two counts of criminal threats
(Pen. Code, § 422; counts 3 & 4), count 5 – dissuading a witness by force
or threats (Pen. Code, § 136.1, subd. (c)(1)), and count 6 – misdemeanor
vandalism (Pen. Code, § 594)
name="_ftnref1" title="">[1] with court findings
appellant suffered two prior felony convictions (Pen. Code, § 667, subd. (d)),
a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and two prior
felony convictions for which he served separate prison terms (Pen. Code,
§ 667.5, subd. (b)). The court
sentenced appellant to prison for 20 years.
We affirm the judgment in part and reverse it in part.
Viewed in accordance with the
usual rules on appeal (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established that about 9:00 p.m. on November 16, 2009, Angelica Alvarez was putting gas
in her car at a Mobil gas station at Imperial and Vermont. Jacob Castro, her boyfriend, was in the front
passenger seat and her infant daughter was in the back seat.
Alvarez testified that appellant,
an African-American, approached her. He
told Alvarez that her car had a “hit†on it.
Alvarez was standing next to the gas pump, her car was between her and
appellant, and the distance between the two was about seven feet. The gas station’s lights were operating so
Alvarez “had a good look at the defendant that night.†Alvarez denied there was a hit on the car but
appellant said there was and that he had been sent to kill Alvarez, Castro, and
the baby. Alvarez was afraid. At trial, Alvarez identified appellant as the
person who made the above statements to her.
Appellant told Alvarez that he
was from the Mafia. Appellant lifted his
sleeves and, for a short time, showed his tattoos to Alvarez. She testified he showed “us†his
tattoos. Castro was in the car but he
was watching. Alvarez denied to
appellant that he had a hit on her and her family. Appellant said Alvarez better give him money. Alvarez denied she had money but appellant
said Alvarez and Castro better give appellant $20. Appellant, who had a phone, acted as if he
were making a call, then suggested he might have been confused about the
license plates of Alvarez’s car. However,
appellant said he was not leaving empty-handed and if Alvarez and Castro did
not give appellant money, appellant would kill them in front of their
daughter. Alvarez entered the car.
While Alvarez entered the car,
appellant went to Castro’s side of the car.
Appellant was talking to Castro and searching the glove compartment and
the side compartment on the door.
Appellant was about a foot from Castro.
Alvarez was seated in the driver’s seat, was about three-and-a-half feet
from appellant, and saw his face clearly.
Appellant had a teardrop tattoo or something similar near the right
corner of his right eye. Alvarez thought
appellant had a beard or something like a goatee. Appellant was wearing a brown shirt or
sweater, brown cargo shorts, and white tennis shoes. He was about six feet two inches tall.
Alvarez put her key in the
ignition and was going to use her phone, but appellant said she better not call
the police or do anything or it would be worse for them. Alvarez exited the car and began crying and
making “a big scene.†Appellant told
Alvarez to leave and she drove away with Castro and the baby. At some point appellant took a phone from
Alvarez before she left.
Alvarez drove to Castro’s
brother’s house which was about two minutes away and, using another phone, she
called the police. Alvarez told a 911
operator what had happened. Alvarez
returned to the gas station and saw appellant.
Alvarez parked nearby but later drove away because she had been
illegally parked. She returned to the
intersection about two minutes later and saw appellant outside a liquor store
across the street from the gas station.
Alvarez drove past appellant, parked in the gas station, and watched
him. Appellant eventually sat on a bus
stop bench.
Police arrived, called Alvarez on
her phone, and asked if the robber was sitting on the bench. Alvarez said yes. Police arrested appellant, called Alvarez,
and told her that she had to identify him.
Police told Alvarez that just because police had arrested appellant did
not mean he was the robber. Police took
Alvarez and Castro across the street to a field showup and Alvarez identified
appellant from about eight to ten feet away.
Police lights illuminated appellant and Alvarez clearly saw him.
At trial, the prosecutor showed
Alvarez a photograph of appellant and she testified it depicted the
robber. Appellant looked different in
the photograph and more like the robber.
The photograph depicted the teardrop tattoo on appellant’s face. On the night of the robbery, she “saw
[appellant] closely†and, on the night of the robbery, and at trial, Alvarez
positively identified appellant as the robber.
During cross-examination, Alvarez
testified as follows. Alvarez did not
remember that appellant had headphones or sunglasses, but she remembered he was
wearing a brown shirt. The process of
appellant showing “the sleeves†took perhaps two seconds; appellant “just
lifted it up right quick and that’s it.â€
Alvarez did not look at appellant’s tattoos for detail. About ten minutes passed from the time
Alvarez initially left the gas station to the time she was with the
police. The 911 call reflected the best
information Alvarez had at the time.
During the 911 call, Alvarez did not mention the robber had arm
tattoos. Alvarez did not tell police on November 16, 2009, that appellant
had a teardrop tattoo.
Alvarez saw appellant twice in
court, was asked to identify him, and noticed his teardrop tattoo. When Alvarez was asked about the arm tattoos
at the previous hearing, she did not recall what they were, she was unable to
identify them, and she could not make them out or distinguish what they
said. The following then occurred during
cross-examination: “Q. But, of course, now the [prosecutor] has
shown you these tattoos, correct?
[¶] A. Yes.â€
The prosecutor showed the tattoos to Alvarez during her last court
appearance. Alvarez had seen photographs
of the tattoos at least twice prior to trial.
Alvarez and Castro had talked
about the November 16, 2009
incident because it was a major event in their lives. However, Alvarez and Castro did not discuss
descriptions of the person because the two already knew how the person looked
because they had seen the person.
During redirect examination,
Alvarez testified that after police arrested appellant, she did not tell police
about the teardrop tattoo. The
prosecutor asked why she did not tell police and Alvarez replied, “It didn’t
come to my mind, I guess.†When Alvarez
identified appellant as the robber when he was sitting at the bus stop, during
the field showup, during the two prior hearings, and at trial, she identified
him because she recognized his face. At
a prior hearing Alvarez had testified that she had not told police about the
teardrop tattoo on the phone or after police arrived because appellant had not
shown it to her, it was already on his face, and appellant had rolled up his
sleeves and displayed his other tattoos.
During recross-examination,
appellant played a recording of Alvarez’s 911 call. Alvarez remembered describing the robber
during the call as a light-complected Black male who had headphones, black
sunglasses, a light brown shirt, and white shoes, and she remembered saying
that that was all she remembered concerning a description.
During further examination,
Alvarez testified as follows. Alvarez
did not remember whether, when she saw appellant at the cashier area at the
Mobil station, Alvarez saw appellant wearing headphones or sunglasses. A photograph of appellant displayed to her at
trial depicted a mustache, and hair on his chin. She saw that hair on appellant on the night
of the robbery and at trial.
When Alvarez gave a suspect
description during the 911 call, she mentioned only a shirt, not a
sweater. At a prior hearing she was
asked if she remembered what appellant had been wearing. She testified at that hearing that, because
the incident occurred a long time ago, the only thing she remembered was
appellant was wearing “like a khaki color, like cargo pants,†she was not sure
if appellant was wearing a brown shirt or something similar, but he was wearing
a big sweater.
Castro testified as follows. Castro was at the gas station and sitting in
the passenger seat of the car. In his
rear view mirror, he saw someone approach Alvarez while she was pumping gas and
saw the two conversing. Appellant and
Alvarez talked for perhaps five or seven minutes. Appellant rolled up his sleeves and displayed
his tattoos for perhaps a minute. At
trial, the prosecutor showed Castro photographs of tattoos on appellant’s left
arm and asked if Castro could see those tattoos on the night of the
robbery. Castro replied, “I do somewhat
see them but I couldn’t really see them because I was still in the passenger
seat.†Castro was looking at those
tattoos through the rear view mirror.
The prosecutor showed Castro photographs depicting tattoos on
appellant’s right arm. Castro testified
he recognized those tattoos on the night of the robbery.
At some point appellant
approached Castro, opened the car door, and asked Castro to give appellant
money or anything of value in the car.
Appellant said if Castro did not, Castro would be hurt. When appellant opened the car door, Castro
just glanced at appellant’s face because Castro was afraid. Castro testified he was able to look at
appellant’s face “[l]ike 30 seconds, . . . quick.†Appellant was about 18 inches from Castro and
was leaning into the car. Appellant
searched the glove compartment and the side of the door. Castro remembered appellant’s face and, at
trial, Castro identified appellant as the robber.
Castro also testified as
follows. There may have been teardrop
tattoos on the left side of appellant’s face but Castro did not remember. When appellant was searching through the car,
Castro did not notice tattoos on appellant’s arms because Castro was looking at
appellant’s face. After appellant took a
phone out of the car, he went to the driver’s side. Alvarez was in the car and already had the
key in the ignition. Appellant told her
not to leave and threatened to kill Alvarez, Castro, and the baby if Alvarez
tried to leave. At trial, Castro
identified appellant as the person who took his property and threatened to kill
Castro and Alvarez.
Castro and Alvarez went to
Castro’s brother’s house, then returned to the gas station. This took about 10 to 12 minutes. When they returned, appellant was across the
street at a liquor store. Castro also
testified appellant was in the cashier area at the gas station and was talking
to someone, two or three people were with appellant, appellant then went to the
liquor store, and later went to a bus stop.
The distance from where Castro had been parked at the gas station to the
bus stop was about 54 feet. The gas
station lighting was bright and a light illuminated the bus stop.
Appellant sat at the bus stop and
Castro recognized him as the robber before police arrived. Appellant was wearing a black shirt and cargo
shorts. During the field showup, police
illuminated appellant and Castro identified him from about 15 to 18 feet
away. It was somewhat dark because
stores were closed but streetlights were operating. During the showup, Castro saw the tattoo on
appellant’s face.
During cross-examination, Castro
testified that when appellant was showing his tattoos to Alvarez, Castro was
watching what was happening. Castro
recognized appellant’s tattoos because Castro could “see them from afar.†Appellant searched the car about five
minutes.
When Alvarez was talking with 911
personnel, Castro did not mention that the robber had teardrop tattoos. Castro did not tell police that the robber
had teardrop tattoos, but Castro was not the person who had talked with the
police. The incident of November 16,
2009, was a major event in his life, and he and Alvarez had discussed it many
times. Castro was concerned about, and
Castro and Alvarez discussed, the description of the robber. Castro testified he and Alvarez were “trying
to see if it was the same person. And it
was.†The following then occurred during
cross-examination: “Q. . . .
So some of this that you talked about the fact that the tear drop tattoo
isn’t in your description, you got information from other people aside from
yourself, right? [¶] A.
Yeah, it was my girlfriend.†(
At a prior hearing, photographs
were shown to Castro and he testified he did not recognize any of the tattoos,
he knew appellant had many tattoos, but Castro could not see them from where he
had been sitting. At the last hearing,
Castro did not testify that the robber had teardrop tattoos. Castro had seen appellant in court previously
and Castro had noticed the teardrop tattoos.
Castro testified that when the prosecutor prepared Castro for trial, the
prosecutor showed Castro photographs of appellant and the teardrop tattoos.
During redirect examination, the
prosecutor displayed to Castro a photograph of appellant, and Castro testified
it much more accurately depicted what appellant looked like on the night of the
robbery than how appellant appeared at trial.
The difference was that, at trial, appellant had cut his hair, he was
wearing glasses, and he was more presentable.
Castro denied remembering whether the robber had facial hair.
Los Angeles Police Officer Scott
Teubert testified concerning the incident that he arrested appellant. Appellant was wearing a black shirt, tan
shorts, and white shoes, and had a teardrop tattoo on his face. The tattoo was visible at trial. Teubert searched appellant but found nothing
on him. Appellant presented no defense
evidence.
We will present additional facts
below as appropriate.
Appellant claims (1) the retrial court violated his
constitutional rights to counsel by precluding his trial counsel during closing
argument from commenting on a famous case pertaining to the fallibility of
eyewitness identification, (2) the retrial court abused its discretion by
receiving evidence that appellant said “I’m not going back†and kicked a police
car window, (3) cumulative prejudicial error occurred, and (4) a Penal Code
section 667.5, subdivision (b) enhancement must be stricken. Respondent claims the judgment, and the
abstract of judgment, must be modified to reflect certain fees and assessments.
Because we will partially reverse the judgment based on
our analysis and disposition of appellant’s second claim, there is no need to
discuss any remaining claims of the parties.
Erred by Admitting Into Evidence Appellant’s Statement in the Police Car.
1. Pertinent
Facts.
Prior to the retrial, the
prosecutor proffered testimony from Teubert that “during the course of the
attempt to kick out the back window the defendant was saying, ‘I’m not going
back. I’m not going back.’ †The prosecutor argued the testimony was
relevant to prove appellant’s consciousness of guilt. Appellant objected the proffered testimony
was irrelevant and prejudicial because at the time of this incident in the
police car, appellant already was in custody, police were bringing him back,
there were multiple possible explanations for what had occurred, and the
vandalism charge already had been resolved.
The
retrial court concluded the proffered testimony was relevant and not unduly
prejudicial. As to the last issue, the
retrial court commented the proffered testimony “kind of shows the defendant’s
conduct in a continuance [sic] spectrum
and he makes some statements that arguably could be consciousness of
guilt.†The court indicated the fact the
vandalism charge had been resolved did not make the proffered testimony less
relevant to the remaining charges.
During
the retrial, Teubert testified as follows.
Teubert arrested appellant, handcuffing his hands behind his back. Teubert put appellant in the back of the
patrol car and transported him to the police station, and appellant was
cooperative en route to the station.
However, upon arrival, appellant “stated he’s not going back and began
kicking out the rear window of the police vehicle.†When Teubert took appellant out of the patrol
car, appellant’s hands were handcuffed but they were in front of appellant.
2.
Appellant
claims the trial court abused its
discretion by receiving evidence that appellant said “I ain’t going back†and
that appellant “started kicking the window of the patrol car after arriving at
the police station.†He argues appellant’s
statement informed the jury that he had a criminal history; therefore, the
trial court should have excluded the evidence under Evidence Code section
352. Respondent argues appellant waived
the issue by failing to raise it below.
We address appellant’s claim to forestall a claim of
ineffective assistance of counsel (cf. People
v. Turner (1990) 50 Cal.3d 668, 708).
For the reasons discussed below, we conclude the trial court erred by
failing to exclude under Evidence Code section 352 appellant’s statement that
he was “not going back.â€
In People v. Cabrellis (1967) 251 Cal.App.2d 681, the
defendant, during a police interrogation, asked police “ ‘Why should I tell you
anything that would send me back?’ â€
(Id. at p. 684.) Although Cabrellis
did not expressly refer to Evidence Code section 352 (the section was enacted
in the same year in which Cabrellis
was decided), Cabrellis observed that
other crimes evidence as propensity evidence was inadmissible because the
probative value of the evidence was outweighed by its prejudicial effect. (Id.
at 685.) Cabrellis stated, “The [question by the defendant]
immediately and blatantly signified a criminal conviction of the past for which
defendant might be ‘sent back.’ Even in
the eyes of the most unsophisticated juror, the statement marked him as a
former prisoner who might be sent back to prison or jail.†(
concluded the defendant’s question might have been admissible as evidence of
the defendant’s fear of a future conviction in the current case and thus as evidence
of consciousness of guilt in that case, except for the fact the prosecutor
deliberately withheld evidence of the context of the question that made it
irrelevant, prejudicial as a revelation of the defendant’s criminal past, and
inadmissible. (Cabrellis, supra, 251 Cal.App.2d at pp. 686-688.) Cabrellis
concluded the prosecutor thus “smuggled in illicit evidence of defendant’s
criminal past and criminal character.†(
In
the present case, appellant did not say he was “not going to jail,†“not going
to prison,†or “not going to be incarcerated.â€
He said he was “not going back.†(Italics added.) Appellant made this statement to a
law enforcement officer who had custody of appellant and had transported him to
the police station as part of criminal proceedings that could lead to
appellant’s convictions for the crimes that occurred at the gas station.
We
believe appellant’s statement was other crimes evidence because it reasonably
implied prior incarceration and
appellant’s unwillingness to be incarcerated again. The statement implied
appellant’s prior incarceration either as (1) a prisoner who had suffered a
felony conviction(s) (and who perhaps had been released on parole) or (2) a
jail inmate who had suffered a misdemeanor conviction(s) or who was awaiting
disposition of a criminal (felony or misdemeanor) charge(s). These facts are not altered by the fact
appellant’s statement implied he was concerned about being incarcerated for the
present offenses (counts 1 - 5) as well.
Appellant’s statement he was “not going back†was inadmissible other
crimes evidence. (Cf.
Moreover,
on this record, we believe the other crimes evidence was prejudicial. In particular, as discussed below, Alvarez’s
identification testimony was often contradictory, often conflicted with other
People’s evidence, and called into question whether her identification
testimony was based on her independent memory of the robbery as opposed to the
cumulative effect of incremental exposure to appellant after the robbery. In the present case, Alvarez testified at
trial that appellant had a teardrop tattoo near the corner of his right eye,
she thought he had a beard or something like a goatee, and he had tattoos on
his arms. She also testified appellant
was wearing a brown shirt or sweater, brown cargo shorts, and white tennis
shoes.
However,
she also testified the 911 call reflected the best information she had at that
time. After the 911 call was played in
court, Alvarez testified she remembered describing the robber during that call
as a
light-complected Black male who had headphones, black sunglasses, a light brown
shirt, and white shoes, and she
remembered saying that that was all she remembered concerning a description. She did not therefore testify that, during
that call, she mentioned a teardrop tattoo, a beard or goatee, tattoos on the
robber’s arms, or the robber wearing a sweater.
Moreover, Alvarez did not tell police on November 16, 2009,
that appellant had a teardrop tattoo.
When asked why she did not tell police about the teardrop tattoo after
appellant was arrested, she replied, “It didn’t come to my mind, I guess.†Further, at a prior hearing, she
testified that she had not told police about the teardrop tattoo on the phone
or after police arrived because appellant had not shown it to her, it was
already on his face, and appellant had rolled up his sleeves and displayed his
other tattoos. It is not clear how that
testimony adequately explained why she did not tell police about the teardrop
tattoo at least when she was on phone.
On
the other hand, Alvarez saw appellant in court twice prior to trial and saw his
teardrop tattoo. Alvarez had seen
photographs of appellant’s tattoos at least twice prior to trial. The prosecutor showed the tattoos to Alvarez
during the last court appearance and at trial.
Yet Alvarez’s trial testimony suggested appellant showed his arm tattoos
to her for perhaps two seconds. Thus,
Alvarez’s identification of appellant by his teardrop tattoo and arm tattoos
may well have been the product of incremental exposure to same after the
robbery.
As
indicated, Alvarez testified at trial that appellant was wearing a brown
shirt. During the 911 call (i.e., closer
to the time of the robbery), she said it was a light brown shirt. However, Teubert testified appellant was
wearing a black shirt. Moreover, at a
prior hearing, Alvarez testified she was not sure if appellant was wearing a
brown shirt or something similar, but he was wearing a big sweater. Yet Alvarez did not refer to a sweater during
the 911 call.
During
the 911 call, Alvarez said the robber was wearing headphones and black
sunglasses. However, at trial, she
denied remembering whether appellant was wearing headphones or sunglasses when
she saw him at the cashier at the Mobil station. Teubert arrested and searched appellant but
found nothing on him, i.e., appellant apparently did not possess headphones or
sunglasses at that time.
Similarly,
Castro’s identification testimony was often conflicting and called into
question whether his identification testimony was based on his independent
memory of the robbery as opposed to the cumulative effect of incremental
exposure to appellant after the robbery.
Castro testified he was looking at appellant’s
tattoos through the rear view mirror.
Yet when the robber was searching the car, Castro did not notice tattoos
on the robber’s arms. At a prior
hearing, photographs were shown to Castro and he testified he did not recognize
any of the tattoos, he knew appellant had many tattoos, but Castro could not
see them from where he had been sitting.
Castro testified that when the
robber opened the car door on Castro’s side of the car, Castro just glanced at
the robber’s face. Castro denied
remembering if there were teardrops on the left side of the robber’s face. When Alvarez was talking with 911 personnel,
Castro did not mention the robber had teardrop tattoos. Castro saw the tattoo on appellant’s face
during the field show-up. Castro did not
tell police that the robber had teardrop tattoos. Castro did not testify at the last hearing
that the robber had teardrop tattoos.
On the other hand, Castro
had seen appellant in court before and had noticed the teardrop tattoos. When the prosecutor prepared Castro for
trial, the prosecutor showed Castro photographs of appellant and the teardrop
tattoos. A portion of Castro’s testimony
suggested he had obtained information about any teardrop tattoo from Alvarez.
Other conflicts and
testimony call into question the identifications of Alvarez and Castro. Alvarez at one point testified to the effect
the robber showed his arm tattoos perhaps
two seconds. Castro testified appellant
rolled up his sleeves and displayed his tattoos for perhaps a minute. Alvarez and Castro testified to the
effect the robbery was a major event.
However, Alvarez denied, while Castro confirmed, that the two discussed
descriptions of the robber. Police found
appellant sitting on a bus bench across the street from the robbery site. Teubert searched appellant but found nothing
on him.
reviewed the evidentiary error in that
case under the
standard of prejudice enunciated in Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] because once the defendant’s question
was, as a deliberate prosecutorial tactic, admitted into evidence, the
defendant was forced to testify to explain its innocuous import. This deprived the defendant in
not to testify and not to be cross-examined.
(Cabrellis, supra, 251 Cal.App.2d at pp. 686-688.) Those facts are not present in this case.
We test the issue of
prejudice in this case under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) for state law error, i.e., whether it is reasonably
probable that a result more favorable to appellant would have occurred absent
the error. We note “ ‘probability’
in this context does not mean more likely than not, but merely a reasonable
chance, more than an abstract possibility.†[Citation.]’
[Citation.]†(
v. Superior Court (2008) 43
Cal.4th 1040, 1050.)
There
is no dispute as to the sufficiency of the identification evidence but, in
light of our above discussion, we believe this is a close case on the issue of
whether the identifications of Alvarez and Castro were based on their
respective memories of what happened during the robbery, or whether those
identifications were based upon a factor(s) other than those memories. The inadmissible other crimes evidence very
well may have tipped the jury’s scale in favor of conviction on counts 1
through 5. Moreover, we note the trial court gave no limiting instruction
concerning the other crimes evidence, i.e., the court did not instruct the jury
that they could not consider appellant’s statement as propensity evidence or
evidence of his bad character.
We believe there is a reasonable chance a result more favorable to
appellant would have occurred as to counts 1 through 5 if the other crimes
evidence had not been erroneously admitted into evidence. (Watson,
supra, 46 Cal.2d at p. 836.)
Accordingly, we will reverse the judgment of conviction on counts 1
through 5, permitting a retrial on those counts, but we will otherwise affirm
the judgment.
We express no opinion as to
whether a retrial should or should not occur as to counts 1 through 5. Nor do we express any opinion as to whether
appellant’s statement that he was “not going back†could be sanitized. Nor
do we express any opinion as to the admissibility of evidence that appellant began
kicking out the rear window of the police vehicle (counts 1 – 5).
The judgment is affirmed,
except the judgment of conviction as to count 1 – second degree robbery, count 2 – attempted second
degree robbery, two counts of criminal threats (counts 3 & 4), and count 5
– dissuading a witness by force or threats is reversed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
title="">[1]
A jury convicted appellant on
count 6 but deadlocked on the remaining counts.
Following a retrial, a jury convicted him on the remaining counts.
