State of Louisiana v. Jamarlon Pierre

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1071

STATE OF LOUISIANA

VERSUS

JAMARLON PIERRE

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 18733-1
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Van H. Kyzar
District Attorney
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
Counsel for Appellee:
State of Louisiana

Alex J. Washington
Washington & Wells
1700 Irving Place
Shreveport, Louisiana 71101
(318) 841-1233
Counsel for Defendant/Appellant:
Jamarlon Pierre

KEATY, Judge.

Defendant, Jamarlon Pierre, appeals his convictions and sentence. For the

following reasons, we affirm.

PROCEDURAL BACKGROUND

On December 12, 2011, Conswayla Mitchell was residing at her house in

Natchitoches, Louisiana, where she lived with her fiancé, Tyrell Thomas. Thomas,

a drug dealer, was out of town at the time. At approximately 9:00 a.m., two men

kicked in her front door and entered her house. They proceeded into her bedroom

where one of the men shot Mitchell. Before leaving, the men confiscated a gun

and $2,200 in cash. After a tip was receivied by the police, Defendant and other

individuals were arrested.

Defendant was charged with attempted first degree murder, aggravated

burglary, and armed robbery. The Bill of Information was amended to attempted

second degree murder, violations of La.R.S. 14:27(A) and La.R.S. 14:30.1(A)(1),

and armed robbery, a violation of La.R.S. 14:64. On January 22, 2014, Defendant

was found guilty following a jury trial. He was sentenced to forty-five years at

hard labor for attempted second degree murder and forty-five years at hard labor

for armed robbery. The sentences were ordered to be served concurrently without

benefit of probation, parole, or suspension of sentence.

Defendant appeals his convictions and sentence, assigning the following

three errors: (1) the evidence was insufficient to convict him of attempted second

degree murder and armed robbery; (2) the trial court erred in sustaining the State’s

objection to Defendant’s hearsay statements; (3) his sentence was

unconstitutionally excessive.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that

there are no errors patent.

II. First Assignment of Error

In his first assignment of error, Defendant contends that the evidence was

insufficient to convict him of attempted second degree murder and armed robbery.

The standard of review utilized in a sufficiency of the evidence claim is

“whether, viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found proof beyond a reasonable doubt of each of

the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.

7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007)

(citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)). The Jackson

standard of review is legislatively embodied in La.Code Crim.P. art. 821 and “does

not provide the appellate court with a vehicle to substitute its own appreciation of

the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.

2/22/06), 922 So.2d 517, 521.

In this case, Defendant was charged with second degree murder, which is

defined as the killing of a person “[w]hen the offender has a specific intent to kill

or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). Attempt is defined as:

Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

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La.R.S. 14:27(A). Specific intent may be inferred from the circumstances

surrounding the accused’s actions. State v. Thomas, 10-269 (La.App. 3 Cir.

10/6/10), 48 So.3d 1210, writ denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert.

denied, __ U.S. __, 132 S.Ct. 196 (2011). Louisiana jurisprudence holds that

pointing and firing a gun at a person indicates an intent to kill. Id.

Defendant was also charged with armed robbery, which is defined 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, while armed

with a dangerous weapon.” La.R.S. 14:64(A).

At trial, Mitchell testified that on the morning in question, she looked out of

her living room window and saw three men in a black Nissan pull into her

driveway. She testified that the men exited the vehicle and she “could see the one

dude that I could identify” standing on the side of the car. Mitchell testified that

since she did not recognize the men, she went to her bedroom where she looked

out of another window and saw two of the men walking to her front door. She

testified that after she heard a knock, the men entered her front door and proceeded

to her bedroom wherein one of the men shot her. Mitchell testified that the shooter

wore a ski mask which covered his face. She testified that following the shooting,

the men asked for money. Mitchell testified that she told them that money was

located in a nearby nightstand, which also contained a gun. She testified that she

never saw the money nor the gun following the incident. Mitchell testified that she

subsequently provided the police with an identification of the man standing beside

the black Nissan. She testified that she picked Jermaine LaCaze from a

photographic lineup, identifying him as the man standing by the Nissan.

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Deputy Winfred McDowell, Jr., of the Natchitoches Parish Sheriff’s

Department, testified that he investigated the incident and that Mitchell stated that

she was shot by the shorter of the two men who entered her house. He testified

that a composite sketch was prepared of one of the men based upon a description

Mitchell provided. McDowell testified that following dissemination of this

composite sketch to the public, law enforcement received a tip that the sketch

favored LaCaze. McDowell testified that based upon this information, a

photograph lineup was taken and presented to Mitchell which contained LaCaze’s

picture. He testified that Mitchell identified LaCaze as being one of the

individuals involved in the incident.

LaCaze testified that on the morning in question, he was driving his

grandmother’s Nissan Sentra when he picked up Perry Willis and Defendant, who

wanted to get codeine at Thomas’s house. When they arrived at Mitchell’s house,

LaCaze testified that he went to the front door and knocked although nobody

answered. He testified that Defendant and Willis subsequently exited the car and

approached to the front door. LaCaze testified that Defendant “knocked the door

in with his shoulder” and Defendant and Willis “both ran in with guns.” He

testified that Defendant was wearing a ski mask whereas Willis was not. LaCaze

testified that as the two men were inside the house, he returned to the car and

attempted to leave. He testified that as he backed out of the driveway, however,

the other two men ran out of the house and jumped into the car when Willis put a

gun to LaCaze’s head for trying to leave them. LaCaze testified that they left

Mitchell’s house with a cell phone, methanphetamine, and money, although

LaCaze never took any of the stolen money for himself. He testified that in order

to evade police, he drove to Michael Phillips’s property wherein Defendant got

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Willis to bury the guns in the woods on the side of Phillips’s house. He testified

that they parked the Nissan at Phillips’s property and that Charles Kelly

subsequently picked them up. LaCaze testified that although he never heard a gun

shot at Mitchell’s house, he knew that a gun had been fired as he smelled

gunpower when the other two men re-entered the car following the home invasion.

LaCaze testified that Defendant told him that he “had to shoot” Mitchell, and

LaCaze heard Defendant tell Kelly that he “had shot the bitch.”

LaCaze testified that after Kelly picked them up, they went to the mall

where Defendant and Willis purchased presents and clothes. He testified that

Kelly subsequently dropped him off at home. LaCaze testified that thereafter, he

took his wife’s car to Phillips’s house and told Phillips that the Nissan had broken

down and that he would retrieve it in a few days. LaCaze testified that he and

Mario Jackson retrieved the car a few days later, taking it to Tootie Gay’s house.

He testified that at Gay’s house, he removed the license plate, placed it into the

trunk, left the car there, and went to Dallas where he remained until he was

arrested on January 11, 2012.

LaCaze testified that he was charged as a principal to both armed robbery

and aggravated burglary and that he revealed Defendant’s and Willis’s

involvement five months following his arrest. LaCaze testified that no promises

were made for his testimony, explaining that he wanted it to be known that he did

not know that Defendant and Willis were going to rob and shoot Mitchell. He

further testified that he went with the police to Phillips’s property where the guns

were allegedly buried, but they could not be located.

Jackson and Phillips testified on behalf of the State. Their testimony

corroborated LaCaze’s testimony regarding parking the Nissan Sentra at Phillips’s

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house, removing the car from Phillips’s house, and parking it at Gay’s house.

Kelly, who was declared a hostile witness by the trial court, also testified on behalf

of the State. His testimony corroborated LaCaze’s testimony in that after receiving

a telephone call from Defendant, he went to Phillips’s house to pick up the men.

Kelly testified that they subsequently proceeded to Bossier City where they spent

the money, further corroborating LaCaze’s testimony. Kelly testified that all three

men had a gun, including LaCaze. Kelly admitted to making a statement to the

police in July 2012, that Defendant had told him that he shot Mitchell.

McDowell testified that a black Nissan registered to LaCaze’s grandmother

was located at Gay’s house and that LaCaze was arrested in January 2012. He

further testified that based on the information received from LaCaze and Phillips,

Willis and Defendant were also arrested.

The above testimony shows that Mitchell was shot following a home

invasion and robbery. Although only Mitchell, Defendant, and Willis know what

happened during the home invasion, LaCaze’s testimony as to the occurrences

following the home invasion was corroborated by the State’s witnesses. In his

brief, however, Defendant questions LaCaze’s credibility given his prior felonies.

As to a witness’s credibility, “‘[i]t is the role of the fact finder to weigh the

respective credibilities of the witnesses, and therefore, the appellate court should

not second guess the credibility determinations of the trier of fact beyond the

sufficiency evaluations under the Jackson standard of review.’” State v. F.B.A.,

07-1526, pp. 1-2 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, 1009, writ denied, 08-

1464 (La. 3/27/09), 5 So.3d 138 (quoting State v. Freeman, 01-997, pp. 2-3

(La.App. 3 Cir. 12/12/01), 891 So.2d 578, 580).

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In this case, the jury believed LaCaze’s testimony despite the conflicting

testimony as to whether he had a gun. In that regard, “[i]t is well-settled

jurisprudence that the testimony of a single witness, absent internal contradictions

or irreconcilable conflicts with physical evidence, is sufficient to support a

conviction.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041,

1043. The conflicting testimony about whether LaCaze had a gun does not

contradict evidence showing that Mitchell was shot and robbed following the home

invasion.

Finally, the above testimony places LaCaze, Defendant, and Willis at the

crime scene. Regardless of who shot Mitchell, Defendant was at least a principal

in the robbing and shooting. A principal is defined as “[a]ll persons concerned in

the commission of a crime, whether present or absent, and whether they directly

commit the act constituting the offense, aid and abet in its commission, or directly

or indirectly counsel or procure another to commit the crime, are principals.”

La.R.S. 14:24. Under this theory, a person may be convicted of an offense even

though he did not personally fire the fatal shot. State v. Brooks, 45,778 (La.App. 2

Cir. 3/2/11), 58 So.3d 506, writ denied, 11-631 (La. 10/7/11), 71 So.3d 309.

Based on the foregoing, we find that the evidence was sufficient to sustain

the verdicts of attempted second degree murder and armed robbery beyond a

reasonable doubt. Accordingly, this assignment of error is without merit.

III. Second Assignment of Error

In his second assignment of error, Defendant contends that the trial court

erred in sustaining the State’s objection to Defendant’s hearsay statements. In his

brief, however, Defendant really argues that the trial court allowed hearsay

testimony from the State’s witnesses which was damaging to his defense.

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Hearsay is defined as follows:

A. Statement. A “statement” is:

(1) An oral or written assertion; or

(2) Nonverbal conduct of a person, if it is intended by him as an
assertion.

B. Declarant. A “declarant” is a person who makes a
statement.

C. Hearsay. “Hearsay” is a statement, other than one made by
the declarant while testifying at the present trial or hearing, offered in
evidence to prove the truth of the matter asserted.

La.Code Evid. art. 801.

In his brief, Defendant contends that LaCaze’s testimony, regarding Willis’s

statement made prior to entering Mitchell’s house, was hearsay. The trial court

testimony shows that the State’s counsel asked LaCaze what happened when

Defendant and Willis walked onto Mitchell’s porch. LaCaze responded by

testifying that Willis stated that somebody was looking out of the window.

Defense counsel objected to this as hearsay which was subsequently overruled by

the trial court, finding that it was admissable pursuant to La.Code Crim.P. art.

801(D), which provides:

(4) Things said or done. The statements are events speaking
for themselves under the immediate pressure of the occurrence,
through the instructive, impulsive and spontaneous words and acts of
the participants, and not the words of the participants when narrating
the events, and which are necessary incidents of the criminal act, or
immediate concomitants of it, or form in conjunction with it one
continuous transaction.

The trial court ruled that the statement was “a part of the res gestae of the event or

the occurrence.”

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In State v. Taylor, 01-1638, pp. 12-13 (La. 1/14/03), 838 So.2d 729, 743,

cert. denied, 540 U.S. 1103, 124 S.Ct. 1036 (2004) (quoting Old Chief v. U.S., 519

U.S. 172, 188, 117 S.Ct. 644 (1997)), the supreme court stated:

[U]nder the rule of narrative completeness incorporated in the res
gestae doctrine[,] “the prosecution may fairly seek to place its
evidence before the jurors, as much to tell a story of guiltiness as to
support an inference of guilt, to convince the jurors a guilty verdict
would be morally reasonable as much as to point to the discrete
elements of a defendant’s legal fault.”

In this case, and prior to LaCaze’s testimony regarding Willis’s statement, Mitchell

had already testified that she looked out the window to see who pulled up in an

unknown vehicle. Willis’s statement preceded the two men breaking into

Mitchell’s house. Willis’s statement, therefore, was part of the res gestae of the

event or the occurrence. Accordingly, we find that the trial court did not err when

it ruled that the statement was admissible.

Defendant also argues that hearsay occurred when LaCaze testified that

Willis pointed a gun to his head, as shown by the following colloquy occurring

between the State’s counsel and LaCaze:

Q. You said that Mr. Willis put a gun to your head?

A. Yes Sir.

Q. Do you know what caused him to do that?

A. Because I was fixing to leave him.

Q. Okay. Did he say anything to you?

A. He told me . . .

At this point, defense counsel argued that the yet to be revealed statement

violated the right to confrontation and cross-examination. The trial court overruled

the objection and held that it was “probably part of the res gestae under Article

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801[,]” although it “clearly falls under Article 803.2 as an excited utterance.” The

State then again asked LaCaze the same question wherein he replied, “I was scared.

[Willis] put the gun to my head, but [Defendant] told him to chill out.” There was

no objection to what Defendant said to Willis.

Similar to the instant case, in State v. Howard, 04-499 (La.App. 3 Cir.

11/17/04), 888 So.2d 375, writ denied, 04-3216 (La. 4/8/05), 899 So.2d 13, no

objection was made to certain statements made by witnesses. We held that

“hearsay that is not objected to becomes substantive evidence. Objections not

made at the time of their occurrence are waived on appeal.” Id. at 381-82

(footnotes omitted). Therefore, even if what Defendant said in the instant case was

hearsay, the issue was waived since there was no objection. Id.

Finally, Defendant, whose nickname is “Bohonka” according to LaCaze’s

tesimony, contends that Kelly’s testimony regarding a statement made by Willis to

Defendant was hearsay. The trial court testimony shows that the following

colloquy occurred between the State and Kelly regarding statements he made to the

police, as follows:

Q. Also, that July 5, 2012 statement. You told McDowell . . . after
we dropped LaCaze off, Perry Willis was like, damn Honka, you
know you ain’t have to shoot her, why you shoot her man? Honka . . .

MR. METHVIN: Again, objection, hearsay.

Q. Honka . . .

MR. METHVIN: Within hearsay.

THE COURT: Let me point out to you, I did declare him a
hostile witness.

Hostile witnesses are discussed in La.Code Evid. art. 611 as follows:

A. Control by court. Except as provided by this Article and
Code of Criminal Procedure Article 773, the parties to a proceeding

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have the primary responsibility of presenting the evidence and
examining the witnesses. The court, however, shall exercise
reasonable control over the mode and order of interrogating witnesses
and presenting evidence so as to:

(1) Make the interrogation and presentation effective for the
ascertainment of the truth;

(2) Avoid needless consumption of time; and

(3) Protect witnesses from harassment or undue embarrassment.

....

C. Leading questions. Generally, leading questions should
not be used on the direct examination of a witness except as may be
necessary to develop his testimony and in examining an expert
witness on his opinions and inferences. However, when a party calls a
hostile witness, a witness who is unable or unwilling to respond to
proper questioning, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions. Generally,
leading questions should be permitted on cross-examination.
However, the court ordinarily shall prohibit counsel for a party from
using leading questions when that party or a person identified with
him is examined by his counsel, even when the party or a person
identified with him has been called as a witness by another party and
tendered for cross-examination.

In this case, the trial court declared Kelly a hostile witness such that La.Code

Evid. art. 611(C) authorized the State’s use of leading questions. “The use of

leading questions is largely within the discretion of the trial court, and only clear

abuse of that discretion which prejudices the defendant’s rights will justify reversal

of a conviction.” State v. Grady, 47,622, p. 22 (La.App. 2 Cir. 1/16/13), 108 So.3d

845, 858, writ denied, 13-294 (La. 10/4/13), 122 So.3d 551. Accordingly, we find

that the trial court did not abuse its discretion in this regard.

We further note that prior to this objection, there was other witness

testimony indicating that Defendant bragged about shooting Mitchell without

objections. Therefore, even if Kelly’s statements as alleged by Defendant

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constitute hearsay, the other witness statements that were not objected to would

become evidence. Howard, 888 So.2d 375.

Accordingly, Defendant’s assignment of error is without merit.

IV. Third Assignment of Error

In his third assignment of error, Defendant contends that his forty-five years’

imprisonment was unconstitutionally excessive. He contends that there lacked

sufficient aggravating circumstances warranting the sentence.

Defendant was convicted of attempted second degree murder, which carries

a sentence of imprisonment “at hard labor for not less than ten nor more than fifty

years without benefit of parole, probation, or suspension of sentence.” La.R.S.

14:27(D)(1)(a) and 14:30.1(B). He was sentenced to forty-five years at hard labor.

Defendant was also sentenced to forty-five years at hard labor for armed robbery,

which carries with it a sentenence of imprisonment “at hard labor for not less than

ten years and for not more than ninety-nine years, without benefit of parole,

probation, or suspension of sentence.” La.R.S. 14:64(B).

In this case, Defendant failed to object to his sentences at the sentencing

hearing, nor did he file a motion to reconsider pursuant to La.Code Crim.P. art.

881.1(E), which provides, in pertinent part:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

Normally, we would proceed with a bare bones review of the excessiveness

of the sentence. However, we decline to do so in this case since Defendant, in his

brief, discusses only “the sentence” but fails to state which sentence is excessive or

whether both sentences are excessive. Furthermore, following Defendant’s

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sentencing in this matter, the State filed a habitual-offender bill in the Natchitoches

Parish trial court, Docket Number 21363. He was adjudicated a third-time felony

offender on June 25, 2014, according to appellate court Docket Number 14-1333.

At that adjudication hearing, the trial court vacated “[t]he previous sentence in

Docket Number C18733-1A[,]” although it failed to state which sentence was

vacated. Furthermore, in appellate court Docket Number 14-1333, and with

respect to the habitual-offender sentence of life imprisonment, we vacated it and

remanded the matter, finding that the trial court did not specify which sentence in

the current case was being enhanced. Accordingly, we find that the issue of

excessiveness is both moot and precluded from review.

DECREE

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

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