A jury found Grace guilty in March 2010 of two counts of armed robbery, two counts of conspiracy to commit armed robbery, aggravated burglary and conspiracy to commit aggravated burglary for his alleged involvement in a home invasion that occurred here on March 3, 2009 and in which one of the invaders was shot and killed.
The appeals court is requiring re-sentencing on the armed robbery and conspiracy to commit armed robbery convictions because of procedural error.
Judge Larry Vidrine sentenced the defendant to 40 years at hard labor on the two armed robbery counts; 20 years at hard labor for the two conspiracy to commit armed robbery counts; 15 years at hard labor for the aggravated burglary count; and 15 at hard labor for the conspiracy to commit aggravated burglary count. All sentences were ordered to be served concurrently.
Grace drew up the plan for Antonio “Tony” Thomas and Gavin Herbert to rob Renee Nelson’s house. Gavin testified that the defendant planned the robbery and took them to pick up a sawed-off shotgun.
Gavin further testified that the defendant drove them to Renee’s house and waited nearby while Gavin and Tony executed the home invasion.
At some point during the robbery, Tony left with one of the victims, Kaninski Larnette, to get more money. Tony was eventually shot and killed during a struggle at Kaninski’s mother-in-law’s house.
After the police arrived at Renee’s house, Gavin fled. He was apprehended the next day. The defendant was charged after Gavin informed the authorities about his involvement.
According to the appeals court:
Renee’s daughter and her cousin testified that, at approximately 10 p.m., Renee’s fiancé, Jowaski Frank, dropped them off at Renee’s house.
They testified that, when they entered the house, they were confronted by Tony and Gavin, who were armed and masked.
Both of the girls testified that they knew Gavin, but did not recognize his voice because he did not speak much during the robbery.
The daughter testified that she recognized the silver handgun wielded by one man as the one from her mother’s bedroom. The men tied up the girls on the daughter’s bed and demanded money and drugs.
They eventually took approximately 55 cents from the daughter’s pocket and $80 from the cousin’s purse.
Testimony revealed that Renee, Jowaski, his mother, Lisa Frank, and their friend Wilinsky Thomas returned to the house at approximately 10:30 p.m., and that Wilinsky’s stepbrother, Kaninski, dropped by about that time.
The adults socialized in the garage for a while. Tony and Gavin eventually forced the adults into the house and repeatedly demanded money from them.
Several adults testified that Tony and Gavin told them they were “from Baton Rouge” and that “Robert Drummer” sent them to rob them.
Jowaski testified that he heard one masked man say that “Charles” had “sent him for the money and he know it’s there, he knows the money is here[.]”
Jowaski testified that they took a dollar from him and Kaninski testified that they took approximately $700 from him.
Eventually, Kaninski told the men he could take them to get more money and that he told Tony that he would “give him some money to leave [them] alone.”
Kaninski testified that Tony, brandishing the silver handgun, forced him to drive to his mother-in-law’s house.
According to Kaninski’s testimony, while they were in the car, Tony told him that the defendant sent the men to Renee’s house and he “paid them $5,000 to kill everybody in the house.”
Kaninski also testified that Tony made a phone call and asked about the money that was supposed to be in Renee’s house.
Kaninski testified that the person on the phone told them to meet him on a road behind Tobacco Tavern, but that they did not meet the person although they drove to that location.
Kaninski thought that the person on the phone was the defendant, but offered no other explanation for that assumption other than “who else he gonna call?”
According to Kaninski, while Tony was attempting to commit a second home invasion at his mother-in-law’s house, he was shot and killed during a struggle.
(At the time, police said he was shot twice by a woman in the house who had a handgun.)
Kaninski then alerted the police to the hostage situation at Renee’s house.
When the police arrived at Renee’s to investigate, Gavin ran out of the back door.
Although one of the responding officers attempted to apprehend him, he managed to escape. He hid under a trailer until he was captured the next day.
In her incident report, the officer stated that she observed a second suspect run out of the back door. However, at trial, the officer stated that she had confused one of the victims for a suspect because he was wearing dark clothing.
Additionally, Wilinsky testified about a “third robber” who stayed in the kitchen. No other witness testified that there were more than two robbers.
Gavin testified for the State at trial, and stated that he was not promised anything for his testimony and that he had not made any “deals” with the State or the district attorney’s office.
(Evangeline Parish records indicate Gavin was sentenced in November 2010 to two years each on charges of simple escape and simple burglary. He had escaped from the Ville Platte jail in April 2009.
He was indicted in Dec. 2009 on seven counts of aggravated kidnapping, one count of aggravated burglary and two counts of armed robbery.)
Gavin testified that he and Tony met with Tony’s uncle, the defendant, on the afternoon of March 3, 2009.
According to Gavin’s testimony, the defendant had a “mission” for them, which was to get money from Kaninski. Gavin testified that the defendant told them the layout of the house they were supposed to rob, that there was supposed to be at least $50,000, and where a silver handgun was located.
Gavin testified that he, Tony, and the defendant were supposed to split the money.
Gavin also testified that the defendant told Tony to kill someone if he had to because they would “testify on [him]” if they were caught.
According to Gavin’s testimony, the defendant drove to an abandoned house on the other side of town, where Tony retrieved a sawed-off shotgun from under a couch.
Tony then picked up some dark clothing from his stepmother’s house and the defendant dropped both Tony and Gavin off at Gavin’s house to change.
Gavin further testified that the defendant picked up both men and dropped them off outside Renee Nelson’s house at about 9:30 p.m.
According to Gavin, he and Tony were to break into the house while the defendant waited across the street.
Gavin testified that Tony called the defendant to make sure the “coast was clear” before they broke down the back door.
Additionally, Gavin testified that the defendant would pick them up when they called to say they had the money.
Generally, Gavin’s testimony corroborated the other witnesses’ testimony regarding the robbery of Renee’s house.
Gavin explained Tony’s statements that they were “from Baton Rouge” and that “Robert Drummer” sent them as intended to “throw them off and stuff. . . .”
Jowaski, Wilinsky and Kaninski all testified that they recognized Tony’s voice. In particular, Kaninski testified that he had some altercations with the defendant and with Tony in the past.
Renee testified that she and the defendant had dated at some point, and that the defendant used to have a key to her house but that he had given it back.
Additionally, Renee identified as hers the silver handgun that the police seized from Kaninski’s mother-in-law’s house.
The defendant’s girlfriend, Shalana Doucet, testified that the defendant was coming down with the flu that day.
She testified that Tony, Gavin and “another little guy” came by the house about 4:00 or 5:00 p.m. and that the defendant gave them a ride somewhere.
Shalana testified that, after that, the defendant was in or around the house with her until 8:00 p.m. when she went to take a nap.
She further testified that, when she woke up at about 10:00 p.m., the defendant was sleeping on the couch at her mother’s house.
According to Shalana’s testimony, Tony called between 10:00 and 10:30 p.m. and asked for a ride, but the defendant refused.
Shalana agreed with the State’s characterization that Tony was “angry” during that phone call.
Shalana testified that, on her way to work between 10:30 and 11:00 p.m., she talked to the defendant on her cell phone.
Several other witnesses testified that they saw Gavin, Tony and another unidentified man with the defendant at about 4:00 or 5:00 p.m. and that the defendant gave them all a ride somewhere.
Fernella Tezeno, Tony’s stepmother, testified that the defendant dropped Tony off at her house about 5:00 or 5:30 p.m. She testified that there was no one else in the defendant’s car and that he left alone.
Additionally, she testified that Tony left her house soon thereafter and that she did not see who he met.
“Viewing the evidence in the light most favorable to the prosecution, the testimony and evidence is sufficient that the jury could have reasonably concluded that Tony and Gavin committed an armed robbery when they took money from the daughter and Kaninski while armed with the sawed-off shotgun and the silver handgun,” the judges wrote.
The judges also said, “Further, the testimony and evidence is sufficient to establish that Tony and Gavin committed an aggravated burglary when they entered Renee’s house without authorization (by breaking down the back door) and that, although they arrived after the break-in, the daughter, the cousin, Renee, Jowaski, Lisa, Wilinsky and Kaninski were all present in the house.
“Further, as discussed above, the evidence is sufficient to establish that Tony and Gavin intended to commit a felony therein -- armed robbery.
“When Tony and Gavin broke into the house, they were already armed with a dangerous weapon, i.e., the sawed-off shotgun, and they further armed themselves by stealing the silver handgun from Renee’s bedroom drawer.
“Although the defendant was not physically present in Renee’s house when these offenses occurred, his presence was not required for the jury to convict him as a principal to the offenses of armed robbery and aggravated burglary.
“The testimony supports the jury’s conclusion that the defendant was involved in the commission of those offenses.
“Gavin testified that the defendant not only conspired to commit the crime, but that he drove Tony and Gavin to Renee’s house, acted as a lookout and was, at least initially, intended to be the “getaway driver” once the robbery was completed.
“Gavin’s credibility was bolstered by the general corroboration by other witnesses of the events that happened at Renee’s house.
“We note that, although the defendant offered alibi testimony, the jury was free to accept or reject that testimony.
“Further, the alibi testimony did not necessarily establish that the defendant was either at Shalana’s mother’s or grandmother’s house at the time of the robbery.
“As for the conspiracy charges, Gavin’s testimony was sufficient to establish that he, the defendant, and Tony agreed to commit an armed robbery with the purpose of “getting some money from Kaninski” and that they made an act in furtherance of the conspiracy when they drove to the abandoned house to retrieve the sawed-off shotgun eventually used in the crime.
“That testimony was corroborated, in part, by defense witnesses who testified that the defendant drove Tony, Gavin, and “another little guy” at the approximate time that Gavin claimed they planned the robbery.
“As the finder of fact, the jury was free to accept, in whole or in part, the testimony the victims and Gavin and to reject, in whole or in part, the defense witnesses’ testimony that the defendant only gave a ride to Tony, Gavin and “another little guy.”
“The jury could observe the demeanor of all the witnesses, and was in the best position to weigh their testimony and evaluate their credibility.
“We find that any rational trier of fact could have found that the State sustained its burden of proving all of the elements of the charged offenses beyond a reasonable doubt.”