State of Louisiana v. Cortez De'Shun Hines

Judgment rendered August 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,747-KA
No. 55,748-KA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CORTEZ DE’SHUN HINES Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court Nos. 394,960 & 370,018

Honorable Christopher T. Victory, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Edward K. Bauman

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

KODIE K. SMITH
VICTORIA T. WASHINGTON
MARGARET RICHIE GASKINS
Assistant District Attorneys

*****

Before PITMAN, STEPHENS, and ELLENDER, JJ.

ELLENDER, J.

Cortez De’Shun Hines appeals his conviction of second degree

murder arising from the shooting death of Sherman Rambo. We affirm.

FACTUAL BACKGROUND

Shortly before 8:00 pm on September 1, 2019, the 42-year-old Rambo

and his uncle Gregory Wells drove to the A1 Stop, a convenience store at the

corner of Youree Drive and Stoner Avenue in Shreveport, to pick up some

beer after a day’s work. Rambo was driving a white Chevy Tahoe; he let

Wells out of the truck and, after other vehicles cleared off, pulled up to the

front door of the store. Interior surveillance video showed Wells and

another patron, in a black shirt, inside the store. Suddenly a young Black

man wearing a red shirt opened the door, entered briefly, glanced around,

shouted something at somebody, and then turned around and hurried out the

door. Wells then exited the store, apparently without buying anything, and

got into the front passenger seat of the Tahoe.

About this time, someone in a red Chevy Cruze pulled up to the front

of the store, facing the Tahoe, and the man in the black shirt exited the store.

According to Wells, the man in the red shirt walked up to the Cruze, held up

his hand and made a “finger gun” gesture toward the other man, and then

reached inside the Cruze, pulled out an actual gun, and started firing at the

other man. Seeing this develop right before his eyes, Wells slid out of the

passenger seat and hid under the Tahoe.

The man in the black shirt, later identified as Shaquille Bradford,

ducked behind the Tahoe to avoid getting hit. He hid behind the passenger

side and edged toward the driver’s side, but the gunman followed him with a

stream of shots. After a few shots struck the radiator and hood, another

pierced the front glass, apparently striking Rambo. Wells and Bradford were

unhurt. The gunman quit shooting, turned around, and fled on foot toward

Stoner.

Exterior surveillance video showed that, after the shooter took off, the

driver of the Cruze edged up alongside the Tahoe, fired a few more shots,

and then pulled onto Stoner. Surveillance video from a nearby office-

equipment business, C.F. Biggs, showed the red Cruze as it stopped, picked

up the man in the red shirt, and drove west on Stoner, toward Stone Vista

Apartments. Surveillance video from Stone Vista showed the red Cruze

arriving, and two men walking down a fire alley.

Shreveport Police received the 911 call at 7:58 pm; Officer Ladarius

Ford arrived moments later, to find Wells cradling the stricken Rambo. Ofc.

Ford administered CPR and called EMS, but Rambo was declared dead at

LSU Health Sciences Center, a bullet lodged near his spine. Wells told Ofc.

Ford that the assailant, who was wearing a red shirt, had entered the store,

exited, and then started firing. Officers looked around for anybody matching

the description, but without success. Sgt. Jennifer White, a crime scene

investigator, processed the scene, recovering four jacket fragments and 15

.40-cal. casings on the parking lot pavement. Later, after the Tahoe was

impounded, officers found an additional .40-cal. bullet in the hood and two

fragments lodged elsewhere in the truck.

The lead investigator on the case, Det. Donald Henry, drove Wells

from A1 to the police station. En route, Wells told him he would be able to

identify the shooter. Meanwhile, police received a Crime Stoppers tip that

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the driver of the Cruze was Jacody Wilson, who stayed at Stone Vista

Apartments. A resident of Stone Vista, Caroline Harris, told Det. Henry that

Wilson and a relative of his, the defendant, 27-year-old Cortez Hines, had

visited that day driving a red Cruze. Sgt. Jeff Brown used a SPD database to

trace the Cruze to Alexis Gray, who lived on Lancaster Street, in the Sunset

Acres area of Shreveport. Officers obtained a search warrant for that house.

Sgt. Brown and two other officers executed the warrant two days after

the crime, on September 3. When they pulled up, they saw the red Cruze

parked in the driveway; three Black men, Hines, Wilson, and Carl

McClinton, were standing at the head of the driveway, close to the backyard;

Alexis Gray was inside the house. All were taken in for questioning. Gray

ultimately told officers that Wilson had used her car, the Cruze, to drop her

off for work at Piccadilly Cafeteria around 11:00 am the day of the crime

and picked her up about 8:30 pm. The Cruze had no damage, and she was

unaware it had been involved in a shooting until officers came with the

search warrant. The Cruze was dusted and swabbed but yielded no usable

fingerprints or DNA.

Behind the house on Lancaster Street was a blue recycle bin with its

lid open; in it, officers found two handguns: a black Glock Model 22 .40-

cal., with one bullet in the chamber, and a blue Taurus 9 mm, with a loaded

magazine. Inside the house, on a couch in the living room, they found a

Glock Model 23 .40-cal. pistol. Forensic testing on these guns and on the

casings taken from the A1 parking lot showed that nine of them had been

fired from the Glock Model 22 and six from the Glock Model 23. The

fragments were too deformed to be compared. The guns were dusted and

swabbed but, like the car, yielded no usable fingerprints or DNA.
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Inside the house, officers found four cellphones, including a blue

iPhone X on top of a takeout box from Southern Classic Chicken. Officers

obtained a search warrant for this phone, accessed its contents, and found

three notable photos. One, taken on August 31, the day before the crime,

was a shot of Hines holding the blue iPhone in a mirror and showing his

reflection. Two, taken on September 1 at 5:31 pm, showed Hines wearing a

red Champion® T-shirt. Officers did not recover that shirt, or any red shirt,

when they searched the house.

After interviewing Hines, Wilson, and McClinton, Det. Henry got

another officer, unconnected to the case, to assemble a six-photo lineup that

included Hines’s picture. Det. Henry then showed this lineup to Wells, who

picked out Hines. Wells also identified Hines at trial.

PROCEDURAL HISTORY

The state initially charged all three men, Hines, Wilson, and

McClinton, with the second degree murder of Rambo (docket 55,748-KA).

Hines pled not guilty. After discovery, the state moved to sever all charges;

this was granted, and the remainder of the record (docket 55,747-KA)

involves Hines only.

The case proceeded to jury trial over four days in April 2023.

Eighteen witnesses testified, and evidence included five surveillance videos,

295 still photos, the three guns and various projectiles, forensics reports, the

blue iPhone X, a copy of the photo lineup, and other items.

At trial, Det. Henry, Sgt. Brown, Sgt. White, and several other officers

described their investigation of the case. The state’s theory was that Hines

was the man in the red shirt who pulled a gun out of the Cruze, tried to hit

Bradford, but hit Rambo instead.
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The witnesses generally agreed that the quality of the surveillance

video, particularly the outdoor camera at A1, was not good enough to give a

sharp impression, or positive identification, of the gunman’s face. Wells

testified he had never seen Hines before, and then saw him only briefly –

first when he poked his head inside the store and, moments later, when he

pulled a gun and forced Wells to take cover under the Tahoe. Still, he told

Det. Henry that he could identify the shooter, and he picked Hines’s picture

out of the lineup and again identified him at trial. Defense counsel did not

move to suppress the photo lineup or object to any of Wells’s testimony.

On the third day of trial, Det. Henry testified about the contents of the

blue iPhone X: the three photos of Hines, including two taken shortly before

the crime showing him in a red Champion® shirt. Defense counsel

vigorously objected to these photos, urging lack of foundation; however,

after discussion out of the jury’s presence, counsel conceded that he had

filed no motion to suppress the contents of the phone, and suggested this

failure might constitute ineffective assistance of counsel. Counsel withdrew

the objection, and the photos were admitted.

At the close of evidence, the jury took 54 minutes to find Hines guilty

as charged of second degree murder. The court later imposed the mandatory

life sentence at hard labor and without benefits. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

By his first assignment, Hines urges the evidence was insufficient to

prove him guilty of second degree murder. He concedes the evidence must

be viewed in “the light most favorable to the prosecution,” Jackson v.

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Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), the appellate court cannot

assess credibility or reweigh evidence, State v. Stowe, 93-2020 (La. 4/12/94),

635 So. 2d 168, and Louisiana recognizes the concept of transferred intent,

State v. Strogen, 35,871 (La. App. 2 Cir. 4/3/02), 814 So. 2d 725, writ

denied, 02-1513 (La. 12/13/02), 831 So. 2d 983.

He argues, however, that when the issue is identity of the defendant,

the state must negate any reasonable probability of misidentification, State v.

Weary, 03-3067 (La. 4/24/06), 931 So. 2d 297, cert. denied, 549 U.S. 1062,

127 S. Ct. 682 (2006). Further, courts use factors to assess the reliability of

eyewitness identification, Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375

(1972); State v. James, 464 So. 2d 299 (La. 1985). He contends that Wells

saw the shooter for “only a short period” as the individual walked into A1,

turned back around, and left; outside, Wells quickly crawled under the

Tahoe, which would “hinder anyone’s view of the entire incident.” In short,

Wells had neither the opportunity to view the criminal at the time of the

crime nor a good level of attention, thus failing the first two factors of Neil v.

Biggers, supra. Hines also argues that the officer who actually assembled

the photo lineup, a Det. Lozan, was not called to testify, so there is no

assurance that the lineup met protocols for fairness.

Finally, he cites a thread of jurisprudence railing against “the vagaries

of eyewitness identification” and “the inherent unreliability of human

perception and memory,” summarized in U.S. v. Brownlee, 454 F. 3d 131 (3

Cir. 2006). He suggests the jury was not rational to accept Wells’s

testimony, the circumstantial evidence was weak, and the state failed to

negate the reasonable probability of misidentification. He concludes the

conviction must be reversed.
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The standard of appellate review for a sufficiency of the evidence

claim in a criminal case is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, supra; State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert.

denied, 541 U.S. 905, 124 S. Ct. 1604 (2004). The Jackson standard, now

legislatively embodied in La. C. Cr. P. art. 821, does not provide the

appellate court with a means to substitute its own appreciation of the

evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06),

922 So. 2d 517; State v. Galloway, 55,591 (La. App. 2 Cir. 4/10/24), 384 So.

3d 1167.

The Jackson standard also applies in cases involving both direct and

circumstantial evidence. When the direct evidence is viewed in the light

most favorable to the prosecution, the facts established by the direct

evidence and inferred from the circumstances established by that evidence

must be sufficient for a rational trier of fact to conclude beyond a reasonable

doubt that the defendant was guilty of every essential element of the crime.

State v. Sutton, 436 So. 2d 471 (La. 1983); State v. Galloway, supra.

Likewise, if a case rests essentially on circumstantial evidence, that

evidence must exclude every reasonable hypothesis of innocence. La. R.S.

15:438. The appellate court will review the evidence in the light most

favorable to the prosecution and determine whether an alternative hypothesis

is sufficiently reasonable that a rational juror could not have found proof of

guilt beyond a reasonable doubt. State v. Calloway, 07-2306 (La. 1/21/09),

1 So. 3d 417; State v. Galloway, supra.

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Where there is conflicting testimony concerning factual matters, the

resolution of which depends on a determination of the credibility of the

witnesses, the matter is of the weight of the evidence, not its sufficiency.

Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211 (1982); State v. Galloway,

supra. The appellate court neither assesses the credibility of witnesses nor

reweighs evidence. State v. Kelly, 15-0484 (La. 6/29/16), 195 So. 3d 449;

State v. Galloway, supra. Rather, the reviewing court affords great

deference to the jury’s decision to accept or reject the testimony of a witness

in whole or in part. State v. Robinson, 02-1869 (La. 4/14/04), 874 So. 2d 66,

cert. denied, 543 U.S. 1023, 125 S. Ct. 658 (2004); State v. Galloway, supra.

In a case where a defendant claims he was not the person who

committed the offense, the Jackson standard requires the prosecution to

negate any reasonable probability of misidentification. State v. Young, 20-

01041 (La. 5/13/21), 320 So. 3d 356; State v. Galloway, supra. In assessing

the reliability of a witness’s identification of the defendant, courts weigh the

following factors against the corrupting effect of a potentially suggestive

police station identification: (1) the opportunity of the witness to view the

criminal at the time of the crime; (2) the witness’s degree of attention; (3)

the accuracy of the witness’s prior description of the criminal; (4) the

witness’s level of certainty demonstrated at the confrontation; and (5) the

time between the crime and the confrontation. Neil v. Biggers, supra;

Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977); State v. James,

supra.

Second degree murder is defined, in pertinent part, as the killing of a

human being when the offender has a specific intent to kill or to inflict great

bodily harm. La. R.S. 14:30.1 (A)(1). Hines does not contest the
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sufficiency of the evidence of a killing or of specific intent; rather, he

contests the sufficiency of the evidence that he was the offender. On close

review, we find the evidence more than sufficient that Hines was the

shooter. Wells was inside the store, facing the door, when Hines entered and

drew attention to himself by shouting at someone and then leaving abruptly.

The interior video shows excellent lighting and a clear opportunity to view

the intruder’s face. An instant later, while sitting in the Tahoe, Wells saw

the same person facing him directly and aiming a gun at him, circumstances

that would focus anyone’s attention on the gunman in a potentially lethal

situation. Shortly after the shooting, Wells told Det. Henry that he would be

able to identify the shooter. These facts more than adequately satisfy the

standards of opportunity to view, degree of attention, and level of certainty.

Neil v. Biggers, supra. The facts do not support Hines’s contention that

viewing the videos tainted Wells’s identification: Wells specifically denied

this, and it does not fit the timeline of the investigation drawn by Det. Henry.

Finally, we acknowledge the scholarly debate about the problems with

eyewitness identification, astutely noted in U.S. v. Brownlee, supra, but we

do not find that they warrant overturning the jury’s decision to accept

Wells’s account of seeing the gunman, his positive selection of Hines from

the photo lineup, and his later identification of Hines in court. On this

record, the jury was entitled to accept Wells’s testimony that Hines was the

shooter.

Moreover, the circumstantial evidence is compelling. Bullets found at

the scene of the crime were linked to the handguns found at the house where

Hines was staying; the selfies taken on Hines’s iPhone 2½ hours before the

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shooting showed him wearing a shirt that closely resembled the one worn by

the shooter; the videos from C.F. Biggs and Stone Vista showed Hines

getting into the red Cruze and trying to distance himself from A1. Against

this evidence, the jury could reasonably discount certain facts argued

strenuously at trial, such as that no fingerprints or DNA could be lifted from

the Glocks found in the recycle bin at the house where Hines was staying on

Lancaster Street, that some of the projectiles were too deformed to be linked

to any particular weapon, or that officers failed to take DNA samples from

the blood on A1’s parking lot. These minor facts do not detract from the

strength of the identification and the circumstantial evidence of guilt.

Viewed in a light most favorable to the prosecution, the evidence is

sufficient to negate any reasonable probability of misidentification. This

assignment of error lacks merit.

Ineffective Assistance of Counsel

By his second assignment of error, Hines urges that trial counsel

provided ineffective assistance of counsel as guaranteed by the Sixth

Amendment. He concedes the question is normally raised by post-

conviction relief (“PCR”), State v. Seiss, 428 So. 2d 444 (La. 1983), and the

standard is whether counsel’s errors denied the accused a just result, U.S. v.

Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). He also concedes that photos

are generally admissible, if they shed “any light upon an issue in the case,”

State v. Landry, 388 So. 2d 699 (La. 1980), cert. denied, 450 U.S. 968, 101

S. Ct. 1487 (1981). However, he argues the selfies from the blue iPhone

were highly prejudicial, since they showed him in clothing similar to that

worn by the shooter and the surveillance videos were not very clear. Also,

trial counsel even conceded that his failure to move to suppress these photos
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may have been ineffective assistance. Hines also argues it was ineffective

for trial counsel to file no motion to suppress the photo lineup, which may

have been conducted improperly; he submits there was no “strategic reason”

for failing to challenge this evidence. He asks this court to reverse or,

alternatively, to recognize his right to assert the issue by PCR.

Claims of ineffective assistance of counsel are more properly raised

by application for PCR in the trial court because it provides the opportunity

for a full evidentiary hearing under La. C. Cr. P. art. 930.8. State v. Carter,

10-0614 (La. 1/24/12), 84 So. 3d 499, cert. denied, 568 U.S. 823, 133 S. Ct.

209 (2012). However, when the record is sufficient, allegations of

ineffective assistance may be resolved on direct appeal in the interest of

judicial economy. State ex rel. Bailey v. City of W. Monroe, 418 So. 2d 570

(La. 1982); State v. Ward, 53,969 (La. App. 2 Cir. 6/30/21), 324 So. 3d 231.

The benchmark for judging any claim of ineffectiveness is whether

counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984);

State v. Wry, 591 So. 2d 774 (La. App. 2 Cir. 1991). A conviction will be

overturned if the petitioner proves that (1) counsel’s performance fell below

prevailing professional norms, and (2) counsel’s inadequate performance

prejudiced the petitioner to the extent that the trial was rendered unfair and

the verdict suspect. State v. Legrand, 02-1462 (La. 12/3/03), 864 So. 2d 89,

cert. denied, 544 U.S. 947, 125 S. Ct. 1692 (2005); State v. Washington, 491

So. 2d 1337 (La. 1986).

The assessment of an attorney’s performance requires that his conduct

be evaluated from counsel’s perspective at the time of the occurrence. A
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reviewing court must give great deference to trial counsel’s judgment,

tactical decisions, and trial strategy, strongly presuming that he has

exercised reasonable professional judgment. State v. Tillman, 15-0635 (La.

9/25/15), 175 So. 3d 950; State v. Ward, supra. A defendant making a claim

of ineffective assistance must identify certain acts or omissions by counsel

that led to the claim; general statements and conclusory charges will not

suffice. Strickland v. Washington, supra; State v. Ward, supra.

The specific omission asserted by Hines is trial counsel’s failure to

move to suppress Wells’s photo identification and the selfies on Hines’s

iPhone. On the record presented, the prospect that such motions would have

been granted is very small. The selfies resulted from a search warrant for

the house on Lancaster Street, and a later search warrant for the blue iPhone

found there; Hines has identified no defects in the affidavits, the warrants

themselves, or the execution of the searches. Similarly, Det. Henry testified

that he delegated the preparation of the photo lineup to another officer to

avoid tainting the process; Hines offers only speculation that this precaution

reached the opposite result. On this evidence, the claim of ineffective

assistance would fail. State v. Jones, 10-1026 (La. 10/1/10), 48 So. 3d 210;

State v. Turner, 52,510 (La. App. 2 Cir. 4/10/19), 267 So. 3d 1202, writ

denied, 19-00873 (La. 9/24/19), 279 So. 3d 386.

Still, if Hines can uncover any evidence to support these or other

claims of ineffective assistance, the procedure of La. C. Cr. P. art. 924 et

seq., with its attendant procedural requirements, would be the proper forum

to present it. On the current record, this assignment of error lacks merit.

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CONCLUSION

For the reasons expressed, Cortez De’Shun Hines’s conviction and

sentence are affirmed.

AFFIRMED.

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