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STATE OF LOUISIANA                                            *   NO. 2008-KA-0195
VERSUS                                                        *
                                                                  COURT OF APPEAL
CRAIG BRADLEY AND                                             *
LONNIE SMITH                                                      FOURTH CIRCUIT
*
STATE OF LOUISIANA
*
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 448-975, SECTION “J”
HONORABLE DARRYL A. DERBIGNY, JUDGE
JUDGE PAUL A. BONIN
(COURT COMPOSED OF JUDGE MAX N. TOBIAS, JR., JUDGE EDWIN A.
LOMBARD, JUDGE PAUL A. BONIN)
KEVA LANDRUM-JOHNSON
DISTRICT ATTORNEY
DAVID S. PIPES, JR.
ASSISTANT DISTRICT ATTORNEY
1340 POYDRAS STREET
SUITE 700
NEW ORLEANS, LA 70112-1221
COUNSEL FOR STATE OF LOUISIANA
CHRISTOPHER A. ABERLE
LOUISIANA APPELLATE PROJECT
P.O. BOX 8583
MANDEVILLE, LA 70470-8583
COUNSEL FOR LONNIE SMITH
LAURA PAVY
LOUISIANA APPELLATE PROJECT
P.O..BOX 750602
NEW ORLEANS, LA 70175-0602
COUNSEL FOR CRAIG BRADLEY
October 1, 2008
AFFIRMED




Defendants, Craig Bradley and Lonnie Smith, were charged by a bill of
information with two counts each of armed robbery, violations of La. R.S. 14:64.
They were jointly tried before a twelve-person jury.   At the conclusion of trial,
defendant Bradley was found guilty as charged as to count one and not guilty as to
count two.   Defendant Smith was found guilty of first degree robbery as to count
one and not guilty as to count two.
The trial court sentenced defendant Smith to twenty (20) years at hard labor
without benefit of probation, parole or suspension of sentence.   Smith was later
adjudicated  a  second-felony  habitual  offender  and  the  trial  court  vacated  the
original sentence and resentenced Smith to twenty (20) years at hard labor without
benefit of probation, parole or suspension of sentence.  Smith appealed.
The trial court sentenced defendant Bradley to twenty-five (25) years at hard
labor without benefit of probation, parole or suspension of sentence.   Bradley filed
a motion for reconsideration of sentence.   The trial court granted the motion and
resentenced Bradley to fifteen years at hard labor without benefit of probation,
parole or suspension of sentence.  Bradley also appealed.
FACTS
The  Tango  Bar  is  located  in  the  French  Quarter.    New  Orleans  Police
Department Detective Orlando Matthews investigated a robbery that occurred there
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on the night of March 26, 2004.   In the course of his investigation, he learned that a
suspect in the robbery, Lonnie Smith, worked at a business called the Black Tie,
which was located near the bar.   The bar and the business were both owned by
Mark Blandford.1   From this lead, the detective compiled a photographic lineup
and presented it to patrons and employees who were present during the armed
robbery.  Following identification of Smith as a perpetrator, he was arrested.
Randall Adams, an out-of-town tourist, testified that on the night in question
he had gone into the Tango Bar and ordered a drink.   A male subsequently entered
the bar and put a gun over Adams’ shoulder.   Adams then noticed that a second,
shorter man with a gun had entered the bar.    That man started screaming at a
woman  playing  video  poker,  saying  he  wanted  the  money  out  of  the  poker
machines.   The female bartender, Jessica Mendoza, told him they did not have
keys to the machines because they were privately owned.   Adams said he turned
and looked the man directly in the face, inches away.   After realizing they could
not get into the video poker machines the two robbers took money off the bar and
removed money from the bar’s cash register.   One of them then ordered the bar
patrons and employees upstairs.  The police were called from Adams’ cell phone.
During the trial, Adams identified defendant Bradley as the man who first
walked up behind him and put the gun over his shoulder.   Although Adams gave a
brief description of the second, shorter robber, he did not identify defendant Smith
in court.
Blandford, the owner, testified that he was called to the Tango Bar following
the robbery.    When he got to the bar he recognized most of the people there,
including the bartender, Jessica Mendoza, another bar employee, Adrienne Noble,
1 Blandford was a witness at the trial even though he was not present in the bar at the time of the robbery.
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and Adrienne’s sister.   Carl Brown, one of the supervisors at Black Tie, was also
there.    Blandford  said  he  accompanied  Mendoza  outside  with  police  to  view
several suspects.  Mendoza did not identify anyone in that first group.
Blandford  testified  on  cross  examination  that  both  defendant  Smith  and
defendant Bradley worked for Black Tie and that Carl Brown may have been their
supervisor.
Daniel Skehan testified that he went to the Tango Bar on March 26, 2004, at
approximately  10:00 p.m., after bartending a silent auction at the Cabildo.   He
ordered a beer and placed his cell phone and cigarettes on the bar before going
back outside to put his bag of work things in his truck.   Two men came into the bar
right before he left.   He came back in the bar, and two seconds later the two men
pulled out a gun.   They ordered the bartender to give them money.   They did not
rob any of the patrons, except according to Skehan they took Skehan’s cell phone.
Then, at gunpoint, the robbers forced everyone in the bar into the back courtyard,
and fled.  Skehan saw the robbers’ faces.
Skehan later was presented with a photo lineup, in which he identified the
photo of Lonnie Smith.   Skehan said he later identified defendant Bradley in an
informal show-up lineup at the Eighth District police station.   Skehan testified that
he remembered both men because he pleaded with them to leave his cell phone,
which had important telephone numbers of business associates.   He identified both
defendants  in  court.    Skehan  admitted  to  prior  convictions  for  possession  of
marijuana within the last several years, attempted distribution of marijuana five (5)
years previously, and a firearm conviction over ten (10) years ago.   Skehan denied
making any deals with the State in exchange for testifying.
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Jessica Mendoza, the bartender, testified that the defendants walked into the
bar and looked around.   The two men approached the bar, and she asked what she
could get for them.   Defendant Bradley said something she did not understand.   He
then ordered her to give him the  “f------ money”.    Mendoza asked if he was
kidding.   Bradley then pointed a gun at her, told her it was no joke, and again
ordered her to give him all the “f------ money”.   Mendoza called out for fellow
employee  Adrienne  Noble,  who  did  not  say  anything.    Then  another  woman,
whose son worked at the bar, screamed and told Mendoza to just give Bradley the
money from the cash register, which she did.   Bradley asked for the poker money,
meaning  money  kept  to  pay  off  winners  playing  the  video  poker  machines.
Mendoza told him that what had been in the register was all she had.   The two men
then herded everybody upstairs.   After the robbery, she described the robbers to
police.   Police took her to a show-up of three individuals on the street that same
night, but she positively excluded them as the robbers.   Mendoza later identified
both defendants in separate photo lineups.   She also identified both defendants in
court.
ERRORS PATENT AND ASSIGNMENT OF ERROR NO. 3 -- BRADLEY
A review of the record reveals no patent errors.
ASSIGNMENTS OF ERROR NO. 1 - BRADLEY AND SMITH
In their first assignments of error, both defendants argue that the trial court
erred in not allowing them to cross examine prosecution witness Daniel Skehan
concerning  a  criminal  charge  then  pending  against  him  in  another  section  of
Orleans Parish Criminal District Court:
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MS. MORRIS:
Q.    And do you have an interest in this case, as in did you make
Any [sic] deals with the State for testifying hear this morning?
A.    No.
Q.    Is your date of Birth [sic] July 15th?
A.    It’s [date deleted].
Q.    And so you’re the same Daniel Skehan who has an open case in
Section “G”?
MS. PARKS:
Objection. She’s not allowed to talk about open cases, only
convictions.
THE COURT:
And I’ll sustain the State’s objection.   Your [sic] to ignore - -
you’re to not allow that testimony to influence you in any way.
You may proceed with your questioning.
MS. MORRIS:
Okay, your honor.
MR. MEYER:
Judge, I’m going to object to the court’s ruling.  I think it goes
to interest, one of interest, whether or not this witness would
want to be pleasing to the people who might be prosecuting
him.
THE COURT:
Thank you Mr. Meyer. Once again, I’ll note Defense objection.
The Court ruling stands.
The defense is correct that the trial judge clearly erred in constraining the
cross-examination  of  Skehan  at  the  State’s  request.    The  State  in  this  Court
concedes that the question was not objectionable.
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The Sixth Amendment guarantees the right of an accused in a criminal
prosecution “to be confronted with the witnesses against him.”                            “The main and
essential purpose of confrontation is to secure for the opponent the opportunity of
cross-examination ….”   Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105,
1110, 39 L.E.d.2d 347 (1974), quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d
ed. 1940).   In addition, La. Const. Art. I, § 16 states, in pertinent part, that “[a]n
accused is entitled to confront and cross-examine the witnesses against him.”
It is well-settled that “[a] witness’s bias or interest may arise from arrests or
pending criminal charges, or the prospect of prosecution, even when he has made
no agreements with the state regarding his conduct.”   State v. Burbank, 2002-1407,
p. 2 (La. 4/23/04), 872 So. 2d 1049, 1050, quoting State v. Vale, 95-1230, p. 4 (La.
1/26/96), 666 So. 2d 1070, 1072.   A witness’s “hope or knowledge that he will
receive leniency from the state is highly relevant to establish his bias or interest.”
Vale, 95-1230, p. 4, 666 So. 2d at 1072, quoting State v. Brady, 381 So. 2d 819,
822 (La. 1980).                                                                           “The possibility that the prosecution may have leverage over a
witness due to that witness’[s] pending criminal charges is recognized as a valid
area of cross-examination.”   Burbank, 2002-1407, p. 2, 872 So. 2d at 1050, quoting
State v. Rankin, 465 So. 2d 679, 681 (La. 1985).
La. C.E. art.  607(D)(1) states that a party may attack the credibility of a
witness by introducing extrinsic evidence to show the witness’s bias or interest,
except as otherwise provide by legislation.   The trial court presumably relied upon
the plain language of La. C.E. art. 609.1 in sustaining the objection, which sets
forth the general rule that in a criminal case only offenses for which the witness
has been convicted are admissible upon the issue of his credibility, and no inquiry
is permitted into matters for which there has only been an arrest, indictment or a
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prosecution.   However, as noted in Authors’ Note 2, La. C.E. art. 609.1, Pugh,
Force, Rault & Triche, Handbook on Louisiana Evidence Law (2007),                         “[d]enying
an accused the right to cross-examine a state’s witness as to a pending criminal
charge in order to show possible bias may deny him not only his right of cross-
examination, but also his constitutional right of confrontation.”
Nonetheless the State argues that such error was harmless in view of the
considerable  other  evidence  against  the  defendants.    Confrontation  errors  are
subject to the harmless-error analysis, as reiterated by the Louisiana Supreme
Court in Burbank, 2002-1407, p. 3, 872 So. 2d at 1051.
An error is harmless beyond a reasonable doubt if the verdict was surely
unattributable to such error.  State v. Robertson, 2006-1537, p. 9 (La. 1/16/08),
988 So. 2d 166, 172, (citing State v. Johnson, 94-1379, p. 17 (La. 11/27/95), 664
So. 2d 94, 102; Sullivan V. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081,
124  L.  Ed.  2d  182  (1993)),  rehearing  granted  in  part  on  other  grounds  (La.
3/14/08); Vale, 96-2953, p. 2 (La. 9/19/97), 699 So. 2d 876, 877.
The crucial issue insofar as the convictions of these defendants was their
identification as the two individuals, at least one of whom was armed with a
handgun, who perpetrated the armed robbery of Jessica Mendoza and the armed
robbery of Daniel Skehan.   Defendants were charged in count one with the armed
robbery of Mendoza and charged in count two with the armed robbery of Skehan.
The State presented the testimony of the alleged victims, each of whom had made
out-of-court identifications of the two men as the robbers.   Mendoza’s testimony
was in all respects corroborated by all the other witnesses.   Skehan’s testimony
stands alone on the point of his being robbed of his cell phone.
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Mendoza was face-to-face with the robbers and directly communicated with
them.    Bradley demanded money from her, raised a gun and reiterated that he
wanted money.   Mendoza handed cash to him out of the cash register.   Bradley
asked for the video poker money, and she informed him that the cash she had given
him was all there was.
After positively excluding as the perpetrators other persons on the night of
the  robbery,  Mendoza  positively  identified  both  defendants  in  separate  photo
lineups and in person in court during the trial.   Mendoza’s identification of the
defendants was very strong and their identification was corroborated by other
witnesses.
The cross-examination of Blandford elicited testimony that an on the scene
witness, Carl Brown, who knew the defendants and who worked with them for
Blandford’s company, Black Tie, had recognized them and identified them by
name.2
The tourist, whose first opportunity after the robbery to identify anyone was
at the trial, positively identified Bradley.
The jury acquitted both defendants of robbing Skehan.   It may have been
that  the  only  evidence  of  that  accusation  was  Skehan’s  own  testimony,
uncorroborated by any one of the many patrons in the bar or by any physical or
documentary evidence.   It may have been that the jury’s reasonable doubt arose
from his several convictions.
Had the jury accepted Skehan’s uncorroborated testimony and convicted
these defendants of robbing him, we would not be able to conclude that the error
2 Carl Brown did not testify at trial.
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was harmless.   However, for whatever its reason(s), the jury’s verdict is an implicit
repudiation  of  Skehan’s  credibility.3    Additionally,  although  the  defense  was
unable to fully and properly explore Skehan’s possible bias for the prosecution, he
had denied that he had received any prosecutorial consideration for his testimony
against the defendants.
Considering all of the facts and circumstances unique to this case, we can
only  conclude  that  the  guilty  verdicts  rendered  as  to  both  defendants  for  the
robbery of Jessica Mendoza were surely unattributable to the trial court’s error in
denying defense counsel the right to question Skehan as to whether he had a charge
or charges pending against him in another section of court.   Therefore, that error
was harmless beyond a reasonable doubt.
This assignment of error is without merit.
ASSIGNMENTS OF ERROR NO. 2 - BRADLEY AND SMITH
In their second assignments of error, both defendants argue that the trial
court erred in presenting an “Allen” charge to the dead-locked jury.   Since both
defendants concede that their respective trial counsel did not object to the charge,
they both argue here that this alleged lapse constituted ineffective assistance of
counsel.
“As a general rule, claims of ineffective assistance of counsel are more
properly raised by application for post conviction relief in the trial court where a
full evidentiary hearing may be conducted if warranted.”   State v. Howard, 98-
0064, p.  15  (La.  4/23/99),  751 So.  2d  783,  802  (citations omitted).    However,
where the record is sufficient, the claims may be addressed on appeal.   State v.
3 Skehan’s testimony about the robbery of Jessica Mendoza was cumulative.
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Wessinger,  98-1234, p.  43  (La.  5/28/99),  736 So.  2d  162,  183.    The record is
sufficient in this case to resolve the issue of ineffective assistance of counsel with
respect to the failure of defense counsel to object to the alleged “Allen” charge.
Ineffective assistance of counsel claims are reviewed under the two-part test
of  Strickland  v.  Washington,  466  U.S.  668,  104  S.Ct.  2052,  80  L.Ed.2d  674
(1984).   State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 (on
rehearing).   In order to prevail, the defendant must show both that:                      (1) counsel’s
performance was deficient; and (2) he was prejudiced by the deficiency.   Brooks,
supra.   Counsel’s performance is ineffective when it is shown that he made errors
so serious that counsel was not functioning as the  “counsel” guaranteed by the
Sixth Amendment.   Strickland 466 U.S. at 686, 104 S.Ct. at 2064; State v. Ash, p.
9 (La. App. 4 Cir. 2/10/99), 729 So. 2d 664, 669.   Counsel’s deficient performance
will have prejudiced the defendant if he shows that the errors were so serious as to
deprive him of a fair trial.   To carry his burden, the defendant must show that there
is a reasonable probability that, but for counsel’s deficient performance the result
of  the  proceeding  would  have  been  different;  “[a]  reasonable  probability  is  a
probability sufficient to undermine confidence in the outcome.”   Strickland, 466
U.S. at  693,  104 S.Ct. at  2068; State v. Guy,  97-1387, p.  7  (La. App.  4 Cir.
5/19/99), 737 So. 2d 231, 236.
The  trial  transcript  in  the  instant  case  reflects  that  the  jury  retired  to
deliberate at                                                                              6:15 p.m.    At  8:30 p.m. the jury returned to the courtroom and
informed the trial court they were deadlocked.  The following colloquy transpired:
THE COURT:
                                                                                           I received a note from the foreperson, Mr. Freibert
- -
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MR. FREIBERT:
Yes, sir.
THE COURT:
- - to the effect that you’ve apparently reached an
impasse in your deliberations.
MR. FREIBERT:
That’s correct.
THE COURT:
Ladies and Gentlemen:   I first want to commend
you for your efforts, and acknowledge the fact that you
have obviously worked very, very, very hard on this case.
It’s late in the evening and it’s an incredible burden, but
under the responsibility that you’re there to deliberate to
a legal conclusion in this case.    It’s obviously a very,
very serious case that you obviously are taking very, very
seriously.
Ladies and Gentlemen, despite the difficulties that
you all have been experiencing, I remain confident that
there is no better mechanism for bringing this matter to a
conclusion that this jury system by which we live.    I
don’t  think  you’re  going  to  find  any  more  competent
jurors, any more capable collection of people who are in
a position to tackle this very, very difficult issue.   I know
you’ve tried, ladies and gentlemen.
In an effort, in an effort to break this deadlock, I’m
going  to  re-read  to  you  the  instruction  regarding  the
various responsive verdicts available to you in this case,
of which there are seven.
An “Allen” charge refers to jury instructions intended to break a deadlocked
jury.   The term refers to an 1896 decision by the U.S. Supreme Court in Allen v.
U.S.,                                                                                      164  U.S.  492,  17  S.Ct.  154,  41  L.Ed.  2d  528 (1896),  where  the  court
considered  additional  jury  instructions  given  after  the  jury  had  returned  from
deliberations seeking further instruction.   The court summarized the substance of
the additional instruction as follows:
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[T]hat in a large proportion of cases absolute certainty
could not be expected; that, although the verdict must be
the  verdict  of  each  individual  juror,  and  not  a  mere
acquiescence in the conclusion of his fellows, yet they
should examine the question submitted with candor, and
with a proper regard and deference to the opinions of
each other; that it was their duty to decide the case if they
could conscientiously do so; that they should listen, with
a disposition to be convinced, to each other's arguments;
that, if much the larger number were for conviction, a
dissenting juror should consider whether his doubt was a
reasonable  one  which  made  no  impression  upon  the
minds  of  so  many  men,  equally  honest,  equally
intelligent  with  himself.  If,  on  the  other  hand,  the
majority were for acquittal, the minority ought to ask
themselves whether they might not reasonably doubt the
correctness of a judgment which was not concurred in by
the majority.
Allen v. U.S., 164 U.S. at 501, 17 S.Ct. at 157.   The U.S. Supreme Court found no
error in the giving of the instructions.
Nevertheless, in Louisiana an “Allen” charge is disfavored for two reasons:
(1) the charge emphasizes that the jury has a duty to reach a verdict, implying that
the trial judge will not accept a mistrial; and (2) “‘when the duty to reach a verdict
is coupled with an admonition by the trial judge that those in the minority should
rethink their position, there exists an almost overwhelming pressure to conform to
the majority’s view. (Citation omitted).’”   State v. Alvarez, 2000-0819, p. 15 (La.
App. 4 Cir. 7/18/01), 792 So. 2d 875, 885, quoting State v. Collor, 99-0175 (La.
App. 4 Cir. 4/26/00), 762 So. 2d 96.
Bradley  specifically  cites  the  following  sentence  of  the  trial  court’s
additional instruction as meaning that the jury had a duty to reach a verdict:            “It’s
late in the evening and it’s an incredible burden, but under the responsibility that
you’re there to deliberate to a legal conclusion in this case. …”   However, a jury is
under a duty to deliberate to a legal conclusion--if it can.  At no point in giving the
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additional instruction did the trial court imply that it would not accept a mistrial or
that any jurors in the minority should reconsider their views.    The additional
instruction did not constitute a prohibited “Allen” charge.   Further, the jury was
faced with two defendants, each charged with two counts of armed robbery, and it
had been deliberating only two hours and fifteen minutes at the time it returned to
the courtroom and said it was unable to agree on verdicts.   It was not an abuse of
discretion for the trial court to require the jury to continue deliberating.
Even assuming the instruction constituted a prohibited “Allen” charge and
that  both  defense  counsel  were  deficient  in  failing  to  object  thereto,  neither
defendant has shown that there is a reasonable probability that, but for counsels’
deficient performances, the result of the proceeding would have been different.
Accordingly, neither defendant has established a claim of ineffective assistance of
counsel.
This assignment of error is without merit.
CONCLUSION
Accordingly, for the aforementioned reasons, the defendants’ convictions
and sentences are affirmed.
AFFIRMED
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