State of Louisiana v. Tedrick Jewan Richardson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-107

STATE OF LOUISIANA

VERSUS

TEDRICK JEWAN RICHARDSON

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 313-913
HONORABLE MARY L. DOGGETT, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

AFFIRMED WITH INSTRUCTIONS.

Cooks, J., dissents and assigns written reasons.

J. Phillip Terrell
District Attorney
Michael W. Shannon
Assistant District Attorney
Post Office Drawer 1472
Alexandria, LA 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Tedrick Jewan Richardson

AMY, Judge.

The State alleged that the defendant was involved in a series of drive-by

shootings that resulted in the death of one of the victims. A jury convicted the

defendant of one count of negligent homicide, two counts of attempted second

degree murder, and one count of felon in possession of a firearm. After finding the

defendant to be a second felony habitual offender, the trial court sentenced the

defendant to ten years without the benefit of probation or suspension of sentence

for the negligent homicide conviction; twenty-five years without benefit of

probation or suspension of sentence for each conviction for attempted second

degree murder, and fifteen years without the benefit of probation or suspension of

sentence for the felon in possession of a firearm conviction. The trial court ordered

that the defendant‘s sentences for negligent homicide and attempted second degree

murder run consecutively and that the defendant‘s sentence for felon in possession

of a firearm run concurrently with the other sentences. The defendant appeals. For

the following reasons, we affirm with instructions.

Factual and Procedural Background

According to the record, in the late night/early morning hours of September

27-28, 2011, there was a series of drive-by shootings in Alexandria. One of those

shootings resulted in the death of Joe Marzette and another resulted in a gunshot

wound to the leg of Darryl White. 1 Thereafter, the defendant, Tedrick Jewan

Richardson, was charged with one count of second degree murder, a violation of

La.R.S. 14:30.1; two counts of attempted second degree murder, violations of

La.R.S. 14:30.1 and 14:27; one count of possession of a firearm by a convicted

1
The record contains several inconsistencies in the spelling of the names of various
parties. Unless otherwise noted, we use the spellings contained in the transcript of the trial.

felon, a violation of La.R.S. 14:95.1; one count of distribution of a counterfeit

controlled dangerous substance—Schedule II, a violation of La.R.S. 40:967(A)(2);

and unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4. After a

trial, the jury returned a responsive verdict of guilty of negligent homicide, a

violation of La.R.S. 14:32; guilty with regard to both counts of attempted second

degree murder; guilty of distribution of a controlled dangerous substance—

Schedule II; and not guilty of unauthorized use of a motor vehicle.

The record indicates that defendant filed a motion for post-verdict judgment

of acquittal and that the trial court granted that motion in part with regard to the

defendant‘s conviction for distribution of a controlled dangerous substance—

Schedule II. Further, the State filed a habitual offender bill, and the trial court

determined that the defendant was a second felony offender.

The trial court sentenced the defendant to ten years at hard labor without

benefit of probation or suspension of sentence for his conviction for negligent

homicide and twenty-five years at hard labor without benefit of probation or

suspension of sentence for each of the defendant‘s convictions for attempted

second degree murder. For his conviction for possession of a firearm by a

convicted felon, the trial court ordered that the defendant serve fifteen years at hard

labor without the benefit of probation or suspension of sentence. The trial court

ordered that the defendant‘s sentences for negligent homicide and for each

conviction of attempted second degree murder run consecutively. It further

ordered that his sentence for possession of a firearm by a convicted felon run

concurrently with his other sentences.

The defendant appeals, asserting as error that:

2

I. The Trial Court Erred in Denying Tedrick Richardson‘s
Post-Trial Motions Because there was Insufficient Evidence that he
was Involved in Any of the Three Shootings.

II. Even if Tedrick Richardson‘s statement is Accepted as
True, Nothing in His Statement or Witness Testimony Establishes that
he acted as a Principal or the Actual Perpetrator of Any of the Three
Shootings.

III. The Trial Court‘s Imposition of Consecutive Sentences
for the Three Shootings was Excessive.

Discussion

Errors Patent

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

errors patent. An error patent is one which is ―discoverable by a mere inspection

of the pleadings and proceedings and without inspection of the evidence.‖

La.Code Crim.P. art. 920(2). On review, we note patent errors with regard to the

sentences reflected in the minutes and commitment order. Namely, the trial court‘s

minutes from the defendant‘s sentencing hearing indicates that the defendant‘s

sentences for negligent homicide, attempted second degree murder, and possession

of a firearm by a convicted felon were imposed without the benefit of parole.

However, the transcript of the hearing from the defendant‘s sentencing indicates

that the trial court imposed ―all sentences … at Hard Labor with no benefit of

Probation or Suspension of Sentence[.]‖ It is well-settled that when the minutes

and the transcript conflict, it is the transcript which prevails. State v. Wommack,

00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01),

797 So.2d 62. Accordingly, we instruct the trial court to correct the sentencing

3

minutes to accurately reflect the transcript and to further correct the commitment

order to reflect that these sentences were imposed as stated in the transcript.2

Sufficiency of the Evidence

Although phrased differently, the defendant‘s first two assignments of error

concern the sufficiency of the evidence. In addition to his assertion that the State

presented insufficient evidence of his identity as one of the perpetrators, he

suggests that consideration of the State‘s evidence is undermined by its reliance on

circumstantial evidence.

The standard of appellate review for sufficiency of the evidence claims is

well-settled. In State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280,

1285-86, the supreme court reiterated that standard, stating:

The standard of appellate review for a sufficiency of the
evidence claim 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 proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
A determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

As here, the primary issue at trial in Macon was whether the defendant was

one of the perpetrators in the subject series of offenses. ―[W]hen the key issue is

the defendant‘s identity as the perpetrator, rather than whether the crime was

committed, the State is required to negate any reasonable probability of

misidentification.‖ State v. Hughes, 05-992, p. 5 (La. 11/29/06), 943 So.2d 1047,

2
The commitment order presently provides that: ―Defendant is given 60 years without
benefit of probation, parole, or suspension of sentence.‖

4

1051. In order to support a conviction, the defendant need only be positively

identified by one witness. Id.

Here, the parties dispute whether the State‘s case involved purely

circumstantial evidence, or whether it relied upon a combination of direct and

circumstantial evidence, or whether it relied upon a combination of direct and

circumstantial evidence to prove the defendant‘s involvement. ―Generally, direct

evidence consists of testimony from a witness who actually saw or heard an

occurrence, proof of the existence of which is at issue[.]‖ State v. Lilly, 468 So.2d

1154, 1158 (La.1985). Circumstantial evidence, however, ―consists of proof of

collateral facts and circumstances from which the existence of the main fact may

be inferred according to reason and common experience.‖ Id.

In State v. Major, 03-03522, p. 6 (La. 12/1/04), 888 So.2d 798, 801-02, the

supreme court explained that:

when the conviction is based on circumstantial evidence, La. R.S.
15:438 sets forth the rule that ―assuming every fact to be proved that
the evidence tends to prove, in order to convict, [the circumstantial
evidence] must exclude every reasonable hypothesis of innocence.‖
However, La. R.S. 15:438 does not establish a stricter standard of
review than the more general rational juror‘s reasonable doubt
formula; rather it serves as a helpful evidentiary guide for jurors
when evaluating circumstantial evidence. State v. Toups, 01-1875, p.
3 (La.10/15/02), 833 So.2d 910, 912; State v. Chism, 436 So.2d 464,
470 (La.1983). When evaluating circumstantial evidence, the trier of
fact must consider

the circumstantial evidence in light of the direct evidence, and
vice versa, [and] the trier of fact must decide what reasonable
inferences may be drawn from the circumstantial evidence, the
manner in which competing inferences should be resolved,
reconciled or compromised; and the weight and effect to be
given to each permissible inference. From facts found from
direct evidence and inferred from circumstantial evidence, the
trier of fact should proceed, keeping in mind the relative
strength and weakness of each inference and finding, to decide
the ultimate question of whether this body of preliminary facts
excludes every reasonable hypothesis of innocence.

5

Chism, 436 So.2d at 469.

With regard to the defendant‘s conviction for negligent homicide, La.R.S.

14:32 provides, in relevant part, that ―A. Negligent homicide is . . . . (1) The killing

of a human being by criminal negligence.‖ Criminal negligence is defined in

La.R.S. 14:12, which states that:

Criminal negligence exists when, although neither specific nor
general criminal intent is present, there is such disregard of the
interest of others that the offender‘s conduct amounts to a gross
deviation below the standard of care expected to be maintained by a
reasonably careful man under like circumstances.

With regard to the defendant‘s convictions for attempted second degree

murder, La.R.S. 14:30.1 provides, in relevant part, that ―[s]econd degree murder is

the killing of a human being: (1) When the offender has a specific intent to kill or

to inflict great bodily harm[.]‖ Further, attempt is defined in La.R.S. 14:27(A),

which provides that:

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.

Thus, although La.R.S. 14:30.1 provides that second degree murder requires

―specific intent to kill‖ or ―to inflict great bodily harm,‖ in order to be convicted of

attempted second degree murder, the State must prove that the defendant had the

specific intent to kill. State of 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). However, that intent may be inferred from the specific

circumstances of the offense and the defendant‘s conduct. Id.

With regard to the defendant‘s conviction for possession of a firearm by a

convicted felon, La.R.S. 14:95.1 (footnote omitted) provides that:

6

A. It is unlawful for any person who has been convicted of a
crime of violence as defined in R.S. 14:2(B) which is a felony or
simple burglary, burglary of a pharmacy, burglary of an inhabited
dwelling, unauthorized entry of an inhabited dwelling, felony illegal
use of weapons or dangerous instrumentalities, manufacture or
possession of a delayed action incendiary device, manufacture or
possession of a bomb, or possession of a firearm while in the
possession of or during the sale or distribution of a controlled
dangerous substance, or any violation of the Uniform Controlled
Dangerous Substances Law which is a felony, or any crime which is
defined as a sex offense in R.S. 15:541, or any crime defined as an
attempt to commit one of the above-enumerated offenses under the
laws of this state, or who has been convicted under the laws of any
other state or of the United States or of any foreign government or
country of a crime which, if committed in this state, would be one of
the above-enumerated crimes, to possess a firearm or carry a
concealed weapon.

....

C. The provisions of this Section prohibiting the possession of
firearms and carrying concealed weapons by persons who have been
convicted of certain felonies shall not apply to any person who has not
been convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.

Therefore, the State must have proven that 1) the defendant possessed a

firearm; 2) a previous conviction for an enumerated felony; 3) the ten-year

cleansing period has not passed; and 4) the general intent to commit the crime.

State v. Caffery, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, writ denied, 09-

1305 (La. 2/5/10), 27 So.3d 297.

With consideration of the elements of the offenses charged, and in light of

the standard of review, we turn to consideration of the evidence presented at trial.

State‘s witness Chris Newell testified that, on September 27, 2011, he visited

Alexandria to buy crack cocaine. Mr. Newell explained that he ultimately loaned

his car until ―about twelve or one o‘clock or so‖ to someone named ―Dedrick,

Tedrick – something to that [e]ffect‖ for about $50 worth of crack cocaine. Mr.

Newell identified the defendant as the person to whom he had loaned his vehicle.

7

He explained that, when his car was not returned to him later, he flagged down a

police officer. Mr. Newell testified that his vehicle was a 1997 Honda Accord,

silver or gray in color, and that it had a sunroof and a small spoiler. Although Mr.

Newell initially testified that he thought his back windows were tinted, after

looking at a picture of the vehicle presented by the State, he admitted that they did

not appear to be tinted.

Addressing the timeframe of the events at issue, an employee of the Rapides

Parish Communication District testified that, on September 28, 2011, at 12:24 a.m.,

the 9-1-1 center received a call from Mary Street reporting that someone had been

shot (the Monroe incident). Additionally, at approximately 12:44 a.m., the 9-1-1

center received a call from the vicinity of Cabrini school and Texas Avenue that

there was an unresponsive person lying in the street (the Texas Avenue incident).3

Finally, at approximately 12:49 a.m., the 9-1-1 center received a ―shots fired‖ call

from Merrian Peterson on Ninth Street (the Ninth Street incident).

With regard to the Texas Avenue incident, Debra Howard testified that she

was driving on Texas Avenue on September 28, at approximately 12:30 a.m. when

she noticed a man lying on the side of the street near the curb. Ms. Howard

testified that she thought that the man had been drinking and had fallen from his

bicycle. Ms. Howard, thereafter, decided to go back and see if the man was still

lying there. When she returned approximately five minutes later and found the

man still in the street, she asked her girlfriend to call 9-1-1. The record indicates

that the body of Joe Marzette was subsequently located on Texas Avenue. The

3
While the Texas Avenue incident was the second reported, the State asserted that it
occurred prior to both the Monroe Street and Ninth Street incidents.

8

forensic pathologist testified that Mr. Marzette died from a gunshot wound and that

he had recovered a small caliber projectile from Mr. Marzette‘s lung.

Although the 9-1-1 call regarding Mr. Marzette‘s shooting was made at

12:44 a.m. on September 28, the State introduced the testimony of Jamarques

Starling. Mr. Starling testified that in 2011 he lived on Texas Avenue across the

street from Cabrini school. According to Mr. Starling, at about 11:30 to 11:45 p.m.

on September 27, 2011, he heard what sounded like a BB gun being fired.

Thereafter, he saw a car coming down the street from the direction of the noise.

Mr. Starling testified that the car had four doors and was ―probably a Buick,

something old school.‖ Mr. Starling also stated that the car was dark black or blue,

although he admitted that in his original statement he described it as light blue or

gray. Mr. Starling also testified that the car had a least three passengers, and that

the defendant was definitely not the driver of the car.

The State also offered the testimony of Lieutenant William Bates with the

Alexandria Police Department. Lieutenant Bates testified that it was 2.4 miles

from the location where Mr. Marzette was shot to the location of the Monroe Street

incident, the alleged second-occurring shooting. Lieutenant Bates testified that,

driving the speed limit, it took him seven minutes to drive from one location to the

other.

As for the latter location, Darryl White testified that he was walking on

Monroe Street after midnight on September 28, when he was shot in the ankle.

According to Mr. White‘s testimony, someone fired at least six shots at him from

the driver‘s seat of a car that was ―standing still‖ around the intersection of

Florence and Monroe. Mr. White testified that he saw the car before the shots

were fired and that ―the car was coming towards my way and they made the

9

corner.‖ Further, ―[w]hen they made the corner, they stopped in the driveway.

Then they back backed [sic] to the corner and they started shooting at me.‖

Mr. White testified that there were at least four people in the car, which he

said was gray, ―looked like a gray Ford Escort[,]‖ and that it had tinted windows,

although the tint was partially torn off one of the windows. Although Mr. White

stated that the car had a spoiler on the back, he was certain that he car did not have

a sunroof and that the windows were tinted. Further, Mr. White testified that the

driver of the vehicle—the one who fired the shots—was ―chubby‖ and ―way, way

bigger‖ than the defendant.

As far as the alleged third-occurring shooting that evening, the Ninth Street

incident, Merrian Peterson testified that he was standing outside on Ninth Street

when he saw ―a car going from one side of the street to the other. . . . after that car

passed me about four or five car lengths . . . someone got out and they cursing me

out and the next thing I knew some bullets are flying by my head.‖ Mr. Peterson

testified that it was the passenger who stepped from the car. Mr. Peterson further

explained that he dove behind his car and stayed there until the other car drove off.

After taking about ten minutes to compose himself, Mr. Peterson called the police.

Mr. Peterson admitted that he originally described the vehicle as a dark blue

Nissan with tinted windows. However, in his testimony he stated several times

that he was not positive about the color of the car because it was ―in the shadows‖

and that he had been drinking at the time.

As far as the defendant‘s alleged involvement, Sergeant Robert Distafano

with the Alexandria Police Department testified that he began interviewing the

defendant at approximately 8:30 p.m. on September 28, 2011, but that Sergeant

10

Cedric Green took over the interview about an hour later. According to Sergeant

Distafano, the defendant was picked up shortly before the interview.

The defendant‘s recorded statement was played for the jury and,

additionally, the transcribed statement was introduced into evidence. Therein, the

defendant admitted that he gave Chris Newell drugs in exchange for the use of his

vehicle. Further, the defendant stated that he and Quantavious ―Taye‖ Frazier

picked up Michael Dotson. The defendant claimed that the incident on Monroe

Street was the first incident, and stated:

A: Okay we rode. . .uh at first I was the driver. And then Mike
forced like made me like make him drive. Like let him drive. While
he was driving we went down Chester Street at first. And then we
made it to Monroe Street. We made a right on Monroe Street. We
rode down. And while I was in the passenger seat we made a couple
of shots. My homeboy Taye was in the backseat.

Q: Okay. He—who made a couple of shots?

A: Mike. Mike shot a couple of shots, about two or three shots.

According to the defendant, Mr. Dotson was in the driver‘s seat at that time. The

defendant stated that he had ―never seen‖ the person that Mr. Dotson shot at on

Monroe Street.

The transcript of the defendant‘s statement indicates that the officers next

asked him about what happened on ―Sixth Street.‖ The defendant stated that:

A: We made it off the highway, off 49 on the exit to Lower Third.
We passed up Peabody. Alright we passed up Ed Payne‘s store and
we made a right on Sixth Street. When we made a right on Sixth
Street and made it to the fork, to the fork in the road. Alright then. .
.then Mike was like hold on, hold on, hold on before we made it down
the street.

Q: Okay who was driving at that point.

A: I was driving.

11

According to the defendant‘s statement, Mr. Dotson ―jumped out‖ and

―walked like up—like in front of the car a lil‘ bit.‖ The defendant claimed that at

that point he noticed that Mr. Dotson had a gun. However, the defendant also

stated that ―well, I already knew he had a gun cause he had shot[.]‖ The defendant

stated that once he noticed Mr. Dotson had a gun, he ―smashed the gas‖ and made

a right. According to the defendant he heard a couple of shots after Mr. Dotson got

out of the car. The defendant also stated that Mr. Frazier felt that the defendant‘s

driving was going to get them ―busted,‖ so he and Mr. Frazier switched seats. Mr.

Frazier ―made the block and picked Mike up.‖ The defendant later asserted that

Mr. Dotson lived ―right there‖ and that he thought Mr. Dotson was ―fixing to run

in [his] house and run back out.‖ Further, he stated that Mr. Dotson told the

defendant to ―make the block.‖

With regard to the shooting on Texas Avenue, the defendant stated that he

was sitting in the backseat and that Mr. Dotson was driving. The defendant stated

that he had been ―like laying like on – like the headrest like this[.]‖ The statement

further indicates that:

A: with my hand to my head. And I just noticed Mike upping the
gun out the sunroof. That‘s what made me like. . .really come to my
senses; cause I had been smoking weed. When I seen that I looked, I
like tried to look to see who he was aiming the gun at, and I ain‘t see
nobody.

Q: Right.

A: Then I heard like three shots. Well I seen him shoot like three
times you know[.] He hurried up and smashed off.

The defendant claimed that after that, they all went to McDonald‘s and then, when

the defendant asked Mr. Dotson what they were going to do with the car, Mr.

12

Dotson said that he had ―a spot to take it‖ on ―Eight Street on a dead end street[.]‖

According to the defendant, they left the car there and then he went home.

The defendant also stated that between the incidents on Monroe Street and

Texas Avenue, he went home and picked up a charger for his phone. The

defendant claimed that the first shooting happened at ―9-8-8:30-8:45-9[.]‖ When

asked about the time period ―from the first shooting to the last shooting[,]‖ the

defendant responded ―[a]bout three hours.‖ He subsequently stated that: ―Three or

four hours at most. Cause we like Mike what is you doing man. Drop us off. Man

y‘all ain‘t going no where. Y‘all go tell. Y‘all boys must go tell. That‘s what he

kept on saying, y‘all go tell man.‖

Defense counsel questioned Sergeant Distafano, Sergeant Green, and

Detective David Foshee about the course of the investigation. Specifically,

defense counsel questioned both Sergeant Distafano and Sergeant Green with

regard to their conduct during the defendant‘s interview and with regard to several

people whose names were mentioned as part of the investigation, and whether the

police interviewed those individuals or took their statements. With regard to Mr.

Dotson, whom the defendant alleged fired the gun, Sergeant Distafano testified that

he interviewed Mr. Dotson and that Mr. Dotson provided him with an alibi that he

believed.

Additionally, Daniel Guillot testified that he saw the defendant several times

on the night of September 27, 2011. According to Mr. Guillot, after 1 a.m. on

September 28, 2011, he saw the defendant at a house belonging to Sirderian

Caesar‘s aunt on Sixth Street and Glen Oaks. Mr. Guillot testified that when he

first saw the defendant, he was wearing ―a beat up small T-shirt‖ and was ―sweaty

like he had just been doing something.‖ Further, Mr. Guillot testified that the

13

defendant had a ―black and silver‖ handgun on his back belt loop, which he later

testified was a 9mm semi-automatic. According to Mr. Guillot, the defendant went

into a bedroom and changed clothes. Mr. Guillot stated that after the defendant

changed clothes he did not see the gun anymore and that the defendant stayed at

the house about thirty minutes. Mr. Guillot also observed that the defendant‘s

grandmother lived across the street from the house.

Mr. Guillot further testified as to statements allegedly made by the defendant

when they were both in a holding cell. According to Mr. Guillot, the next day both

he and the defendant were picked up by the police, and the defendant was later

placed in a holding cell with Mr. Guillot. Mr. Guillot explained that he overheard

the defendant tell another person that ―[he] busted somebody but they ain‘t got

nothing on me.‖ Mr. Guillot stated that he got to the holding cell at about 8:30 or

9:00 and that it was still daylight outside. According to Mr. Guillot, the defendant

was put in the holding cell about thirty or forty minutes after Mr. Guillot‘s arrival.

The State also offered the testimony of FBI Special Agent William

Williams. Agent Williams is part of the FBI‘s Cellular Analysis Survey Team and

was accepted as an expert in the field of historical cell site analysis. According to

Agent Williams, whenever a cell phone user makes a network transaction, such as

a phone call or text message, the cell phone company records both the time of the

transaction and the location of the cell phone tower used for the transaction. Agent

Williams testified that, using this historical data, it is possible to ―generally locate‖

where a cell phone was whenever a transaction was made. However, he cautioned

that it was ―impossible‖ to pinpoint a location where the phone was at the time of

any particular transaction.

14

Agent Williams testified that he was asked to examine the defendant‘s cell

phone records for September 27, 2011, from 11:45 p.m. to 12:02 a.m.; September

28, 2011 at approximately 12:23 a.m.; and September 28, 2011, at approximately

12:53 a.m. With regard to the transactions made in close proximity to Mr.

Marzette‘s murder, Agent Williams testified that the defendant‘s phone made

several transactions at between 11:44 p.m. and 11:47 p.m. using the western-facing

side of a tower located at Willow Glen and Third Street. Between 11:48 p.m. and

11:49 p.m., the defendant‘s phone made several transactions using the

southeastern-facing side of a tower located near Masonic Drive and Warshauer.

Between 11:49 p.m. and 11:50 p.m., the defendant‘s phone made two transactions

using the northeastern-facing side of a tower near Lee Street and Government

Street. Agent Williams further testified that between 11:51 p.m. and 11:54 p.m.,

the defendant‘s phone made several transactions using the southeastern-facing side

of the Masonic-Warshauer tower. At 11:55 p.m., the defendant‘s phone made a

transaction using the southwestern-facing side of that tower. Agent Williams

reiterated that he could ―only tell you the general location of that phone when a call

actually occurred[,]‖ and that he could not say where the phone was outside of any

particular call.

The State offered into evidence several maps created by Agent Williams.

Those maps indicated the coverage area boundaries of several tower sectors that

Agent Williams identified as being used by the defendant‘s phone. Agent Williams

noted the distance between the Government-Lee tower and the Masonic-Warshauer

tower is ―less than two miles[.]‖ Further, Agent Williams observed that Mr.

Marzette‘s body was found ―roughly half a block‖ outside of the coverage area of

the tower sector used by the defendant‘s phone at 11:55 p.m.

15

When questioned by defense counsel, Agent Williams agreed that, if Mr.

Marzette‘s murder occurred between 11:30 and 11:45 p.m., as opposed to 11:45

p.m. to 12:02 a.m., he had no data for that time period. Agent Williams also

agreed that in order for the phone‘s general location to be recorded, there had to be

some kind of transaction, such as a phone call or attempted phone call. Agent

Williams testified that ―[i]f a phone is just sitting idle somewhere, it‘s not going to

record a location.‖

With regard to the transactions made in close proximity to the Monroe Street

incident, Agent Williams testified that the closest time to the shooting per the

Alexandria police was 12:23 a.m. Agent Williams testified that the defendant‘s

phone recorded several transactions at 12:21 a.m. and 12:24 a.m., using the

western-facing side of a tower near the intersection of Ninth Street and Murray.

Agent Williams also created a map indicating the coverage area boundaries for the

Ninth Street-Murray tower. Agent Williams testified that it was ―approximately …

ten blocks‖ from the tower to the location where shots were fired at Mr. White.

With regard to the transactions made in close proximity to the Ninth Street

incident, Agent Williams testified that, according to the Alexandria police, Mr.

Peterson was shot at 12:52 a.m. Agent Williams testified that the defendant‘s

phone recorded transactions between 12:45 a.m. and 12:55 p.m. using two sectors

of a tower located near Willow Glen River Road and Seventh Street. The State

submitted Agent Williams‘ map into evidence which indicates that location of the

Ninth Street shooting and the location where Mr. Newell‘s vehicle was recovered.

Additionally, the State presented testimony regarding evidence collected

from the various crime scenes. With regard to the Monroe Street incident, Deputy

Deidre Allen testified that she found a bullet fragment on the sidewalk and blood

16

on the ground roughly where the victim told her that he had been shot. On Ninth

Street, Officer Edward Scott testified that he recovered shell casings from a .380

handgun from the location where Mr. Peterson said the shooter was standing.

Officer Scott also testified that he found a bullet hole in the wall of a neighbor‘s

residence and that a bullet was collected from the neighbor‘s bathroom.

Lieutenant Bates testified that from the defendant‘s residence, which he

explained was three or five blocks from the location of the Ninth Street shooting,

was searched but that ―[n]othing of value was found at his residence.‖ Further,

Lieutenant Bates testified that a .22 caliber bullet was recovered from Mr.

Marzette‘s body and that he recovered four .380 fired cartridge casings on the

southwest corner of Florence and Monroe Street.

Lieutenant Bates also stated that he processed Mr. Newell‘s Honda for

fingerprints and that he recovered fifteen latent prints from the vehicle. According

to Lieutenant Bates, a fingerprint found on the inside driver door handle was

identified as belonging to the defendant. He further stated that he tested the

remaining prints against the fingerprints of various individuals, but that none of

those individuals‘ prints matched any of the remaining unidentified prints.

Lieutenant Bates also indicated that no fingerprints were found on the shell

casings.

Michael Stelly, who works for the North Louisiana Crime Lab, testified with

regard to the bullets—which included a bullet jacket—and shell casings recovered

at the crime scene. Mr. Stelly testified that he examined the four fired .380

cartridge cases collected from the scene of the Monroe Street incident, and the two

fired .380 cartridge cases collected from the scene of the Ninth Street incident.

According to Mr. Stelly, he determined that all six cartridge cases were fired from

17

one weapon. With regard to the bullet and the bullet jacket, Mr. Stelly testified

that he could not determine whether they were fired from the same weapon

because the bullet jacket was damaged, but that he could tell they were fired from a

weapon with the same class characteristics. Mr. Stelly also noted that, because

.380 cartridges have the same diameter but are slightly shorter than 9mm

cartridges, it was possible to fire a .380 bullet from a 9mm weapon.

Mr. Stelly also testified that he examined the bullet recovered from Mr.

Marzette‘s body. According to Mr. Stelly‘s testimony, that bullet was a .22 caliber

bullet. Mr. Stelly testified that, because a .22 caliber bullet could not be fired out

of a .380 caliber weapon, that those were ―two different guns.‖ Mr. Stelly also

observed that, because a ―.22 is a small cartridge with a lot less gun powder‖ it has

a ―lot less bang, lot less noise when it exits the barrel of a gun.‖

With regard to the State‘s burden of proving the charge of felon in

possession of a firearm, the defendant stipulated that he had previously been

convicted of ―possession of CDS Schedule II, Cocaine, a felony on June 21, 2011.‖

Following the close of the State‘s case, the defendant presented various

witnesses, including his mother, Olivia Richardson. Ms. Richardson testified that

her son lives with her on Woodard Street. According to her testimony, the

defendant, who was driving a ―tannish, gold Honda‖ came to her house at

approximately 11:45 p.m. with Quantavious Frazier. The defendant retrieved his

cell phone charger and left at most five minutes later. Ms. Richardson later stated

that she saw her son several times that evening—at 11:15 p.m., at approximately

11:35 p.m., and at 11:45 p.m. She testified that:

[The State] He drove up at the time in a Honda. At eleven
fifteen?

18

[Ms. Richardson] Yes, sir.

Q He stayed in the house for a few minutes. Left in the
Honda?

A Yes, sir.

Q Okay. Then you don‘t see him again until eleven fifty?

A No. He same [sic] to the house – eleven fifty was the third
time. That‘s what [sic] I told him what I told him. He came the first
time. He left and he came right back. That was the second time. The
third time was eleven forty-five. That‘s when I told him, the next
time you come here you come in to stay.

Ms. Richardson also testified that the defendant returned home again at 2:30 a.m.

Further, Ms. Richardson stated that she had made it clear to the defendant that she

did not want any guns in the house. According to her testimony, this was because

of her own felony convictions.

Misty Deleery and Breaisha Davis both testified that the defendant arrived at

their house on Park Avenue starting at approximately 12:10 a.m. and stayed for

over an hour. According to both Ms. Deleery and Ms. Davis, while the defendant

was at their house, Ms. Deleery tried to braid his hair. Ms. Deleery stated that she

remembered the time period that he was there because she took a phone off of the

charger before the defendant arrived and had seen the time and that her mother

later woke up and yelled at them to come back inside because it was almost 1:00

a.m. Ms. Deleery did admit that she told the police ―I don‘t know‖ when

questioned about whether the defendant could have left at 12:30 a.m. When asked

how the defendant left, she replied ―[w]alking.‖ She also denied seeing a car.

Further, Ms. Davis was positive that the defendant was at her house between

midnight and 1:00 a.m. However, when questioned by the State, Ms. Davis

insisted that she and Ms. Deleery had been taken to the police station on the same

19

date and that she had given her statement to the police on October 1, 2011. Ms.

Davis testified that she was ―a hundred percent‖ positive that she only went to the

police station one time. However, when questioned by the State as to why her

statement was dated October 3, 2011, Ms. Davis testified:

[The State] Okay. And you recall the police officer said to you
on October the third - -

[Ms. Davis] Mm-hmm.

Q - - I picked you up on Sunday and I had you come down here
to the police station but you were too high for me to get a statement
from you. Is that right? And what was your response on October the
third?

A I said, I guess.

Dantavious Lindsey testified that he was with the defendant in the early

morning hours of September 28, 2011. Mr. Lindsey testified that the defendant

came to get some ―weed‖ from him at his mother‘s house on Gabriel Lane.

According to Mr. Lindsey, the defendant, who was in a gold Honda, arrived at

―like one o‘clock. Between twelve and‖ 1:00 a.m. Mr. Lindsey later testified that

it was right after midnight. Mr. Lindsey also testified that Davetreous ―Boomer‖

Howard was already in the vehicle with the defendant. Mr. Lindsey denied seeing

a gun or ammunition in the vehicle and denied seeing the defendant with a gun.

According to Mr. Lindsey‘s testimony, they dropped Mr. Howard off on

Tulane Avenue and then went to go pick up Travius ―Cat‖ Warden from his

grandmother‘s house, which was also on Tulane Avenue. Mr. Lindsey testified as

follows:

[The defendant‘s attorney] When Cat got into the vehicle –
when Travius Warden got in the vehicle, did he have any firearms?

[Mr. Lindsey] No, sir.

20

Q And during the period of time y‘all were in the car, did he
shoot at anybody?

A No, sir.

Q Did you even have a gun on you?

A No, sir.

Q Did Tedrick shoot anyone?

A No, sir.

Q No shooting?

A No, sir. And no one shooting.

Mr. Lindsey further testified that after they picked up Mr. Warden, they all

went to the BP station on Lee Street to get some cigars. Mr. Lindsey denied going

to Sirderian Caesar‘s house or seeing Daniel Guillot. Mr. Lindsey also stated that

they went to the defendant‘s house sometime after midnight to charge the

defendant‘s cell phone.

Davetreous Howard also testified. Mr. Howard stated that everyone calls

him ―Boomer.‖ According to Mr. Howard‘s testimony, the defendant was getting

his hair done on Park Avenue at 12:45 or 1:00 a.m. when Mr. Howard walked up

and asked the defendant for a ride. Mr. Howard stated that they stayed at the house

on Park Avenue for thirty to forty-five minutes. However, Mr. Howard later stated

that he was already at the house on Park Avenue charging his phone when the

defendant walked up. Mr. Howard remembered that the defendant had a brown

Honda, and that defendant dropped him off in Phoenix Point. Mr. Howard denied

seeing the defendant with a gun and denied shooting at anyone.

Travius Warden, who explained that everyone calls him ―Cat,‖ testified that

he was on his bicycle when he saw the defendant driving a tan Honda. Mr.

21

Warden stated that the defendant was with Mr. Lindsey, whom he called ―Lil‘

Dan,‖ at that time. According to Mr. Warden, the defendant came back and picked

him up between midnight and 1:00 a.m. Mr. Warden testified as follows:

[The defendant‘s attorney] Okay. All right. When you got in
the back of the vehicle, did you see Tedrick with a gun?

[Mr. Warden] No.

Q Did you see Lil‘ Dan with a gun?

A No. I ain‘t seen no guns.

Q Did you see any guns in the vehicle at all?

A No, sir. No, sir.

Q Did you see any bullets in the vehicle?

A No, sir.

Q Any ammunition in the vehicle?

A No, sir.

Mr. Warden also testified that they went to the BP station to get some cigars.

According to his testimony, eventually they ended up going to the defendant‘s

house and sat outside in the car talking until at least 4:00 a.m. Mr. Warden

admitted that in his first statement he said that they stayed outside talking until

2:30 a.m. Mr. Warden further denied seeing Sirderian Caesar or Daniel Guillot.

Sirderian Caesar testified that his cousin lives on the corner of Sixth and

Green Oaks. Mr. Caesar denied being at his cousin‘s house at 1:00 a.m. on the

morning of September 28, 2011. Mr. Caesar further stated that his cousin does not

allow people to ―smoke weed‖ at her house and does not allow people to be there

late at night. Shedrick Metoyer testified that he was not at Sirderian Caesar‘s

22

house at 1:00 a.m. on the morning of September 28, 2011, and confirmed that if

Mr. Guillot said that he saw him there ―[t]hen it‘s all a lie.‖

With regard to the defendant‘s convictions for negligent homicide and

attempted second degree murder, and having viewed this evidence in the light most

favorable to the prosecution, we conclude that there is sufficient evidence to

support these convictions. Notably, the defendant did not contest that he was in

Mr. Newell‘s car on the night in question. Instead, he referenced various

inconsistencies in his own statement, along with that of other witnesses, to suggest

that the person he named as the shooter in his statement was not in the vehicle.

However, there was sufficient evidence that the jury could have determined both

that Mr. Newell‘s car was the one used in all three shootings and that the defendant

was in Mr. Newell‘s car at the time of the shootings. Most importantly, the

defendant‘s statement, which was played for the jury, admitted both of these facts.

The defendant‘s fingerprints were also located on the driver‘s door handle of Mr.

Newell‘s vehicle.

Certainly, there were notable inconsistencies between the witnesses‘

testimonies with regard to the time of each shooting and the description of the

vehicle. We observe that Mr. Guillot‘s testimony about when he encountered the

defendant in the holding cell was inconsistent with the officer‘s testimony about

when the defendant was booked. Similarly, the defendant‘s alibi witnesses offered

inconsistent statements about when they encountered the defendant on the night in

question and those witnesses‘ testimonies contradicted the defendant‘s statement to

the police that he was involved. However, the jury, as the trier of fact, could

accept or reject, in whole or in part, the testimony of any witness, and it was within

the jury‘s purview to resolve those inconsistencies. Macon, 957 So.2d 1280. We

23

note that, if accepted by the jury, there was sufficient evidence to place the

defendant‘s cell phone in the general area of each shooting at the approximate time

of each incident. Further, there was testimony that the defendant was seen with a

9mm semi-automatic, which, testimony revealed, was capable of firing the .380

caliber cartridges recovered at two of the crime scenes.

However, the defendant‘s mere presence in the vehicle at the time of the

shooting does not necessarily impose criminal liability. Having concluded that

there is sufficient evidence to support a conclusion that the defendant was in Mr.

Newell‘s vehicle at the time of the shootings, the relevant determination is whether

there is sufficient evidence to conclude that he was a principal to the crimes for

which he was convicted. Louisiana Revised Statutes 14:24 addresses the law of

principals, stating ―[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.‖ In State v. Mason, 10-28, p. 9

(La.App. 5 Cir. 1/11/11), 59 So.3dd 419, 425-26, writ denied, 11-306 (La.

6/24/11), 64 So.3d 216, the fifth circuit explained accomplice liability, stating:

Only those persons who ―knowingly participate in planning or
execution of a crime‖ are principals to that crime. State v. King, 06-
554, pp. 7-8 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ
denied, 07-0371 (La.5/4/07), 956 So.2d 600 (quotation omitted). An
individual may only be convicted as a principal for those crimes for
which he personally has the requisite mental state. King, supra. The
mental state of one defendant may not be imputed to another
defendant. Thus, mere presence at the scene of a crime does not make
one a principal to the crime. Id. However, it is sufficient
encouragement that the accomplice is standing by at the crime scene
ready to give some aid if needed, although in such a case it is
necessary that the principal actually be aware of the accomplice‘s
intention. State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d
1223, 1225 (per curiam) (quotation omitted).

24

However, a ―general principle of accessorial liability‖ is that ―when two or more

persons embark on a concerted course of action, each person becomes responsible

for not only his own acts but also for the acts of the other, including ‗deviations

from the common plan which are the foreseeable consequences of carrying out the

plan.‘‖ State v. Acker, 12-1116, p. 12 (La.App. 3 Cir. 4/3/13), 111 So.3d 535, 546

(quoting State v. Smith, 07-2028 (La. 10/20/09), 23 So.3d 291).

Having reviewed the record in the light most favorable to the prosecution,

we conclude that there is sufficient evidence to support such a conclusion.

Although the defendant denied firing the gun, in his statement he admitted that he

was in the vehicle on three occasions when another person shot out of the car.

With regard to the Monroe Street incident, the defendant‘s statement indicates that

he knew that another person, who he alleged to be Mr. Dotson, was shooting at a

person. The crime of attempted second degree murder requires that the defendant

have the specific intent to kill. See Thomas, 48 So.3d 1210. Specific intent may

be established by circumstantial evidence and ―[i]t is well-settled that the act of

pointing a gun at a person and firing the gun is an indication of the intent to kill

that person.‖ Id. at 1215. Similarly, the jury could have concluded that the

defendant agreed to render aid to the shooter by agreeing to ―make the block‖ and

then following through on that action even after he heard gunshots.

Further, our courts have determined that where a defendant is present for

multiple criminal acts and remains with the person or persons committing the

criminal acts, the defendant‘s intent to participate can be inferred from his

continued presence. Acker, 111 So.3d 535 (citing State v. Scroggins, 40,746

(La.App. 2 Cir. 3/22/06), 926 So.2d 64, writ denied, 06-098 (La. 11/3/06), 940

So.2d 655). Accordingly, although the defendant‘s statement may be interpreted

25

as downplaying his involvement in the alleged offenses, there was sufficient

evidence for the jury to infer that the defendant had the opportunity to leave the

group but chose not to do so. In turn, the jury could have also inferred that the

defendant possessed the requisite criminal intent for each of the homicide

convictions. As to the negligent homicide conviction, we conclude that the jury

could have found that the defendant was criminally negligent as ―[t]he evidence

supports a finding that the circumstances indicate that the [defendant], in the

ordinary course of human experience, must have adverted to the prescribed

criminal consequences as reasonably certain to result from his act or failure to act.‖

Scroggins, 926 So.2d at 69. Additionally, the nature of those circumstances

supports a finding of a specific intent to kill, as is required for each of the

convictions for second degree murder. Specifically, La.R.S. 14:10(1) explains,

that ―specific criminal intent‖ ―exists when the circumstances indicate that the

offender actively desired the prescribed criminal consequences of his act or failure

to act.‖

The defendant also argues that his statement to the police was an admission

and not a confession. Thus, the defendant argues, the only evidence available for

the jury to consider was circumstantial evidence, and the State failed to exclude

every reasonable hypothesis of innocence as required by La.R.S. 15:438.

―The term ―admission‖ is applied to those matters of fact which do not

involve criminal intent; the term ―confession‖ is applied only to an admission of

inculpatory facts and a confession of guilt.‖ State v. Marr, 626 So.2d 40, 45

(La.App. 1 Cir. 1993)(quoting State v. Jones, 451 So.2d 35 (La.App. 2 Cir.), writ

denied, 456 So.2d 171 (La.1984)), writ denied, 93-2806 (La. 1/7/14), 631 So.2d

26

455. In State v. Boothe, 532 So.2d 203, 206 (La.App. 3 Cir. 1988), a panel of this

court explained that there are three categories of incriminating statements:

The first category is the confession which admits the guilt of the crime
charged. The second is the admission which involves the existence of
criminal intent. The third is the admission or acknowledgment of
facts which tend to establish guilt, but which do not involve the
existence of criminal intent. The Court concluded that remarks which
were not express admissions of guilt or facts showing criminal intent
can be introduced without the foundation necessary for admitting a
confession, despite the fact that the statements might be considered
inculpatory.

In this context, the distinction between a confession and an admission is that a

confession is considered direct evidence while an admission is considered

circumstantial evidence. State v. Hunter, 39,664 (La.App. 2 Cir. 6/29/05), 907

So.2d 200, writ denied, 05-2027 (La. 3/10/06), 925 So.2d 507.

Here, we conclude that whether or not the defendant‘s statement constitutes

an admission, a confession, or a combination of both, there was sufficient evidence

to support the defendant‘s convictions for negligent homicide and attempted

second degree murder. As stated in Major, 888 So.2d at 801, La.R.S. 15:438 ―does

not establish a stricter standard of review than the more general rational juror‘s

reasonable doubt formula[.]‖ As previously discussed, we conclude that the

evidence and testimony, including the defendant‘s own statement, contains enough

information to support the jury‘s finding that the defendant was a willing

participant. See Scroggins, 926 So.2d 64.

Accordingly, we find that there was sufficient evidence to support the

defendant‘s convictions for negligent homicide and attempted second degree

murder.

We further find that the State presented sufficient evidence to support the

defendant‘s conviction for possession of a firearm by a convicted felon. Notably,

27

Mr. Guillot testified that he saw the defendant with a firearm on his back belt loop.

Mr. Guillot‘s testimony was sufficient such that, if believed by the jury, they could

have concluded that the defendant possessed the intent to possess a firearm.

Further, the defendant stipulated that he had been convicted of ―possession of CDS

Schedule II, Cocaine, a felony on June 21, 2011.‖ That date is within the ten-year

cleansing period described by La.R.S. 14:95.1. Accordingly, we conclude that

there was sufficient evidence to support the defendant‘s conviction for possession

of a firearm by a convicted felon.

In sum, the defendant‘s assignments of error with regard to the sufficiency

of the evidence are without merit.

Sentencing

The defendant also asserts that his sentences were unconstitutionally

excessive. Specifically, the defendant contends that the imposition of consecutive

sentences for the convictions of negligent homicide and two counts of attempted

second degree murder rendered his sentences excessive.

The law with regard to excessive sentences is well-settled. In State v.

Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-

43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court explained that:

La. Const. art. I, § 20 guarantees that, ―[n]o law shall subject any
person to cruel or unusual punishment.‖ To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ
denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant
question is whether the trial court abused its broad sentencing

28

discretion, not whether another sentence might have been more
appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d

786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, the supreme court

elaborated that:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a
comparison of sentences imposed for similar crimes may provide
some insight, ―it is well settled that sentences must be individualized
to the particular offender and to the particular offense committed.‖
State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is
within the purview of the trial court to particularize the sentence
because the trial judge ―remains in the best position to assess the
aggravating and mitigating circumstances presented by each case.‖
State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

Additionally, La.Code Crim.P. art. 894.1 contains a list of sentencing

guidelines, and the trial court must ―state for the record the considerations taken

into account and the factual basis therefor in imposing sentence.‖ La.Code Crim.P.

art. 894.1(C). However, the trial court need not articulate every circumstance or

read through a checklist in order to comply with La.Code Crim.P. art. 894.1(C).

State v. Herbert, 12-228 (La.App. 3 Cir. 6/13/12), 94 So.2d 916, writ denied, 12-

1641 (La. 2/8/13), 108 So.3d 78. Yet, the record should sufficiently establish that

the trial court adequately considered Article 894.1‘s guidelines in imposing a

defendant‘s sentence. Id.

With regard to concurrent and consecutive sentences, La.Code Crim.P. art.

883 states that:

If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or

29

plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

Accordingly, concurrent sentences are preferred when a defendant‘s offenses arise

from a common scheme or plan. State v. Bethley, 12-853 (La.App. 3 Cir. 2/6/13),

107 So.3d 841. It is, however, within the trial court‘s discretion to impose

consecutive sentences provided that the trial court articulates particular

justification for doing so at sentencing. Id. ―The factors to consider when

imposing consecutive sentences include defendant‘s criminal record, the severity

or violent nature of the offenses, or the danger the defendant poses to the public.‖

Id. at 850 (quoting State v. Wallace, 11-1258 (La.App. 3 Cir. 5/30/12), 92 So.3d

592, writ denied, 12-1861 (La. 3/8/13), 109 So.3d 355, writ denied, 12-1865 (La.

3/8/13), 109 So.3d 355.

As for negligent homicide, La.R.S. 14:32(C) provides that ―whoever

commits the crime of negligent homicide shall be imprisoned with or without hard

labor for not more than five years, fined not more than five thousand dollars, or

both.‖ Further, and with regard to the two convictions for attempted second degree

murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27, those offenses were

punishable by ten to fifty years at hard labor, without benefit of probation, parole,

or suspension of sentence. See also State v. Thomas, 10-806 (La.App. 3 Cir.

4/27/11), 63 So.2d 343, writ denied, 11-0963 (La. 10/21/11), 73 So.3d 382.

Finally, La.R.S. 14:95.1, relative to possession of a firearm by a convicted felon,

provides that ―[w]hoever is found guilty of violating the provisions of this Section

shall be imprisoned at hard labor for not less than ten nor more than twenty years

30

without the benefit of probation, parole, or suspension of sentences and be fined

not less than one thousand dollars nor more than five thousand dollars.‖ However,

these sentences must be viewed within the context of La.R.S. 15:529.1 4 as the

defendant was found to be a second felony habitual offender and, thus, under these

circumstances each sentence could not have been ―less than one-half the longest

term and not more than twice the longest term prescribed for a first conviction.‖

Reference to the sentences indicates that the trial court stayed within the

above framework as, upon the determination that the defendant was a second

felony habitual offender, it sentenced the defendant to ten years without the benefit

of probation or suspension of sentence for his negligent homicide conviction;

twenty-five years without benefit of probation or suspension of sentence for each

conviction for attempted second degree murder; and fifteen years without the

benefit of probation or suspension of sentence for the felon in possession of a

firearm conviction. Accordingly, we conclude that all of the defendant‘s sentences

are within the statutory range.

Further, our review of the transcript from the defendant‘s sentencing hearing

indicates that the trial court gave lengthy reasons for the sentences, noting the

presence of limited mitigating circumstances, the random, ―egregious‖ nature of

4
In particular, Louisiana Revised Statutes 15:529.1 provides, in pertinent part, that:

A. Any person who, after having been convicted within this state
of a felony, or who, after having been convicted under the laws of any other state
or of the United States, or any foreign government of a crime which, if committed
in this state would be a felony, thereafter commits any subsequent felony within
this state, upon conviction of said felony, shall be punished as follows:

(1) If the second felony is such that upon a first conviction the
offender would be punishable by imprisonment for any term less than his natural
life, then the sentence to imprisonment shall be for a determinate term not less
than one-half the longest term and not more than twice the longest term
prescribed for a first conviction.

(Emphasis added).

31

the crimes, and the lack of motivation in choosing the victims. The trial court

further remarked upon a lack of remorse demonstrated by the defendant. Thus, we

also conclude that the trial court adequately considered the sentencing guidelines

of La.Code Crim.P.art. 894.1.

Addressing the defendant‘s particular concern regarding the consecutive

nature of the sentences, we note that the trial court explained that:

The final issue before the Court is to determine whether the sentences
imposed should run concurrently or consecutively with each other.
The Court is aware of the option and so today I find that they are
consecutive. The evidence, well to an extent. The evidence clearly
established 3 separate occurrences in this case. Defendant shot the
first victim, drove to another part of town looking for a second
innocent victim, shot him, drove around some more to find a third
innocent victim, shot at him. Fortunately the last bullet didn‘t meet its
target and Mr. Petersen was unharmed. Obviously each of these
shootings amounted to a separate crime with separate intent to harm
by the defendant. To run the sentences concurrent for these 3
convictions in this case would be to minimize the seriousness of each
separate offense. Defendant would essentially benefit from the fact
that he chose 3 and not just 1 victim.

On review, we find that the trial court adequately considered the factors

necessary to justify the imposition of consecutive sentences. In addition to the

above excerpt which addresses the separate temporal element of each event, the

trial court considered the defendant‘s previous history, including the fact that the

defendant was on probation at the time of these offenses; the gravity of the offense;

the ―significant, permanent injury‖ done to the victims; and the risk to the general

public posed by the defendant. The trial court specifically noted in that regard that

the defendant‘s offenses appeared to be ―some kind of random game[.]‖ Thus, we

conclude that the trial court adequately expressed its reasons for imposing

consecutive sentences.

32

Finally, we point out that the supreme court has admonished ―that sentence

review under the Louisiana constitution does not provide an appellate court with a

vehicle for substituting its judgment for that of a trial judge as to what punishment

is more appropriate in a given case.‖ State v. Mouton, 15-287, p. 15 (La.App. 3

Cir. 10/7/15), 175 So.3d 1122, 1133 (quoting State v. Savoy, 11-1174 (La. 7/2/12),

93 So.3d 1279). With that precept in mind, and considering the reasons given by

the trial court, we find that the defendant‘s sentences are not constitutionally

excessive.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the convictions and sentences of the defendant,

Tedrick Jewan Richardson, for negligent homicide, attempted second degree

murder, and possession of a firearm by a convicted felon are affirmed. The trial

court is instructed to correct the minutes and the commitment order to reflect the

transcript as to the imposition of sentences without a parole restriction.

AFFIRMED WITH INSTRUCTIONS.

33

COURT OF APPEAL

THIRD CIRCUIT

STATE OF LOUISIANA

16-107

STATE OF LOUISIANA

VERSUS

TEDRICK JEWAN RICHARDSON

Cooks, J. dissenting.

I respectfully disagree with the majority’s holding. I believe the law applied

to the facts here establishes this is a case of circumstantial evidence only. Thus,

Defendant’s claim of insufficiency of evidence must be evaluated not under the

reasonable doubt standard, as the majority applies, but under the analysis that

determines whether “the evidence excludes every reasonable hypothesis of

innocence.” State v. Draughn, 05-1825, p.7 (La.1/17/07), 950 So.2d 583, 592, cert

denied, 552U.S. 1012, 128 S.Ct. 537 (2007). See also La.R.S. 15:438.

Additionally, I am convinced the evidence shows the State failed to meet its

burden of proof. I also believe the trial court legally erred in failing to properly

instruct the jury on the State’s burden of proof in a case involving only

circumstantial evidence. Defendant’s counsel twice requested a jury instruction be

added informing the jury of the State’s burden to prove guilt by presenting

evidence sufficient to exclude every reasonable hypothesis of innocence in cases

involving only circumstantial evidence. The trial judge, freely admitting this was

her first criminal trial, accepted the State’s argument that Defendant’s statement to

police when coupled with Daniel Guillot’s (Guillot) testimony, meant there was

direct evidence in the case. This argument was not correct as to the three

1

shootings. This error of law mandates a reversal of the conviction and a remand

for new trial.

The majority opinion does not discuss whether the case is one based solely

on circumstantial evidence, direct evidence, or a combination thereof, but merely

concludes the evidence is sufficient to convict Defendant beyond a reasonable

doubt. In this case the determination of the proper burden of proof is critical.

Further, the evidence to my mind is insufficient to establish guilt beyond a

reasonable doubt and does not come close to excluding every reasonable

hypothesis of innocence. The “lack of sufficient evidence to sustain the conviction

would entitle defendant to an acquittal under Hudson v. Louisiana, 450 U.S. 40,

44-45 (1981).” State v. Rodricus C. Crawford, 2014-2153, (La. 11/16/16) ___

So.3d___, 2016 WL 6780518, citing Hudson and State v. Mickelson, 12-2539, p.5

(La. 9/3/14), 149 So. 3d 178, 182. In Crawford the state supreme court, relying on

State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d 1012, recently explained the

Jackson standard1 applied to circumstantial evidence cases as follows:

In circumstantial evidence cases, this court does not determine
whether another possible hypothesis suggested by a defendant could
afford an exculpatory explanation of the events. Rather, this court,
evaluating the evidence in the light most favorable to the prosecution,
determines whether the possible alternative hypothesis is sufficiently
reasonable that a rational juror could not have found proof of guilt
beyond a reasonable doubt under Jackson v. Virginia[.]

The Jackson standard does not permit this court to substitute its
own appreciation of the facts for that of the factfinder. State v.
Robertson, 96–1048, p. 1 (La. 10/4/96), 680 So.2d 1165, 1166. It is
not the province of the reviewing court to assess the credibility of
witnesses or reweigh evidence. State v. Smith, 94–3116, p. 2 (La.
10/16/95), 661 So.2d 442, 443. As explained in State v. Mussall, 523
So.2d 1305, 1310 (La. 1988):

1
Jackson v. Virginia, 443 U.S. 307 (1979).

2

If rational triers of fact could disagree as to the
interpretation of the evidence, the rational trier's view of
all of the evidence most favorable to the prosecution
must be adopted. Thus, irrational decisions to convict
will be overturned, rational decisions to convict will be
upheld, and the actual fact finder's discretion will be
impinged upon only to the extent necessary to guarantee
the fundamental protection of due process of law.
[Footnote omitted.]

Crawford, 2014-2153 at p. 9.

A review of the evidence presented in this case discloses numerous

significant contradictions and inconsistencies when compared to Defendant’s

admissions. The evidence when viewed in the light most favorable to the

prosecution does not exclude every reasonable hypothesis of innocence.

Moreover, the evidence is insufficient under the Jackson standard to rationally

support a conviction as to the three shootings. In State v. Coleman, 02-634, pp. 5-6

(La.App. 4 Cir. 10/23/03), 831 So.2d 375, 378, writ denied, 02-3197

(La.12/19/03), 861 So.2d 562, (emphasis added) the fourth circuit, reiterating its

previous holding in State v. Brealy, 00-2758 (La.App. 4 Cir. 11/5/01), 800 So.2d

1116, 1120-21, said:

The Due Process Clause of the Fourteenth Amendment
protects a person accused of a crime from being
convicted unless the State proves every element of the
offense charged beyond a reasonable doubt. This
constitutional protection is the basis of a reviewing
court’s duty to determine the sufficiency of the evidence
used to convict a defendant. State v. Monds, 91-0589
(La.App. 4 Cir.1994), 631 So.2d 536. In deciding
whether evidence is constitutionally sufficient to support
a conviction, the appellate court must determine whether,
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the defendant guilty beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Jacobs, 504 So.2d 817 (La.1987).

3

The appellate court may not disregard this
duty simply because the record contains
evidence that tends to support each fact
necessary to constitute the crime. State v.
Mussall, 523 So.2d 1305, 1311 (La.1988);
State v. Monds, supra, p. 4, 631 So.2d at
539. If the reviewing court finds that no
rational trier-of-fact, viewing all the
evidence from a rational pro-prosecution
viewpoint, could have found the defendant
guilty beyond a reasonable doubt, the
conviction cannot stand constitutional
muster. Mussall, supra. When identity is
disputed, the state must negate any
reasonable probability of
misidentification in order to satisfy its
burden to establish every element of the
crime charged beyond a reasonable
doubt. Jackson v. Virginia, supra; State v.
Smith, 430 So.2d 31, 45 (La.1983).

The reviewing court, however, is not called
upon to decide whether it believes the
witnesses or whether the conviction is
contrary to the weight of the evidence. State
v. Smith, 600 So.2d 1319, 1324 (La.1992);
Mussall, supra, at 1311. As noted by the
Supreme Court, “the court is not to
substitute its judgment of what the verdict
should be for that of the jury, but at the
same time the jury cannot be permitted to
speculate if the evidence is such that
reasonable jurors must have a reasonable
doubt.” Mussall, supra, at 1311 (citation
omitted). Although a conviction based
solely on the identification testimony of one
witness may withstand a sufficiency of the
evidence test, it will do so only “[i]n the
absence of internal contradiction or
irreconcilable conflict with physical
evidence....” State v. Gipson, 26,433, p. 2
(La.App. 2 Cir. 10/26/94), 645 So.2d 1198,
1200.

The Louisiana State Supreme Court in State v. Neal, 00-674, p. 11 (La.

6/29/01), 796 So.2d 649, 658, made it clear “As a general matter, when the key

issue is the defendant’s identity as the perpetrator, rather than whether the crime

4

was committed, the State is required to negate any reasonable probability of

misidentification.” (citations omitted) This forms part of the proper framework

for this court’s review of this conviction. One significant question here is whether

the evidence sufficiently shows the State successfully negated “any reasonable

probability” that Defendant was misidentified. Additionally, the veracity of

Defendant’s admissions of fact is seriously undermined by 1) the coercive nature

under which these admissions were obtained from a youthful person over a period

of five hours; 2) by the suggestive manner through which the police directed

Defendant’s admissions; and 3) by the contradictory and inconsistent evidence

presented at trial. The numerous instances of evidence contradicting or failing to

substantiate Defendant’s “admissions” demonstrate the State failed to exclude

every reasonable hypothesis of innocence and failed to negate the reasonable

probability of misidentification of Defendant.

The United States Supreme Court has often recognized and wrestled with the

persistent problem of false confessions or admissions. As the court observed in

J.D.B., Petitioner v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed.2d

310 (2011):

Any police interview of an individual suspected of a crime has
“coercive aspects to it.” Oregon v. Mathiason, 429 U.S. 492, 495, 97
S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). Only those
interrogations that occur while a suspect is in police custody,
however, “heighte[n] the risk” that statements obtained are not the
product of the suspect's free choice. Dickerson v. United States, 530
U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

By its very nature, custodial police interrogation entails
“inherently compelling pressures.” Miranda, 384 U.S., at 467, 86
S.Ct. 1602. Even for an adult, the physical and psychological
isolation of custodial interrogation can “undermine the individual's
will to resist and ... compel him to speak where he would not
otherwise do so freely.” Ibid. Indeed, the pressure of custodial
interrogation is so immense that it “can induce a frighteningly

5

high percentage of people to confess to crimes they never
committed.” Corley v. United States, 556 U.S. 303,129 S.Ct. 1558,
1570, 173 L.Ed.2d 443 (2009) (citing Drizin & Leo, The Problem of
False Confessions in the Post–DNA World, 82 N.C.L.Rev. 891, 906–
907 (2004)); see also Miranda, 384 U.S., at 455, n. 23, 86 S.Ct. 1602.
That risk is all the more troubling—and recent studies suggest, all the
more acute—when the subject of custodial interrogation is a juvenile.
See Brief for Center on Wrongful Convictions of Youth et al. as Amici
Curiae 21–22 (collecting empirical studies that “illustrate the
heightened risk of false confessions from youth”).

Recognizing that the inherently coercive nature of custodial
interrogation “blurs the line between voluntary and involuntary
statements,” Dickerson, 530 U.S., at 435, 120 S.Ct. 2326, this Court in
Miranda adopted a set of prophylactic measures designed to safeguard
the constitutional guarantee against self-incrimination . . . And, if a
suspect makes a statement during custodial interrogation, the burden
is on the Government to show, as a “prerequisit[e]” to the statement's
admissibility as evidence in the Government's case in chief, that the
defendant “voluntarily, knowingly and intelligently” waived his
rights. Miranda, 384 U.S., at 444, 475–476, 86 S.Ct. 1602;
Dickerson, 530 U.S., at 443–444, 120 S.Ct. 2326.

J.D.B. v. N. Carolina, 564 U.S. 261, 268–70, 131 S.Ct. 2394, 2401, 180 L.Ed.2d

310 (U.S.2011) (emphasis added).

In Corley, addressing the six hour provision provided in 18 U.S.C. § 3501,

the high court found the statute was meant only to limit the McNabb-Mallory
2
presentment exclusionary rule, not eliminate it. That legislation provides that a

confession is not inadmissible “ ‘solely because of delay in bringing such person

before a magistrate judge . . . if such confession is found by the trial judge to have

been made voluntarily and . . . within six hours [of arrest]; it extends that time limit

when further delay is ‘reasonable considering the means of transportation and the

distance to . . . the nearest available [magistrate].’ ” Corley, 129 S. Ct. at 1559.

2
McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819
(1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d
1479 (1957) held that an arrested person’s confession is inadmissible when
given after unreasonable delay to bring him before a judge.

6

The United States Supreme Court reasoned:

In a world without McNabb–Mallory, federal agents would be
free to question suspects for extended periods before bringing them
out in the open, and we have always known what custodial secrecy
leads to. See McNabb, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. No
one with any smattering of the history of 20th-century dictatorships
needs a lecture on the subject, and we understand the need even
within our own system to take care against going too far. “[C]ustodial
police interrogation, by its very nature, isolates and pressures the
individual,” Dickerson, 321 530 U.S., at 435, 120 S.Ct. 2326, and
there is mounting empirical evidence that these pressures can
induce a frighteningly high percentage of people to confess to
crimes they never committed . . . .

Corley, 556 U.S. at 320–21(citation omitted) (emphasis added).

I believe the Defendant in this case is a prime example of a young person,

who after over five hours in police custody, made false admissions concerning

crimes he did not participate in. An examination of Defendant’s version of the

facts obtained by the police interrogator’s suggestive questioning resulted in what

the evidence shows to be false admissions of facts which formed the basis of a

flawed conviction. It appears to me from my review of the record that the police

had a theory of the chain of events concerning the three shootings and guided

Defendant’s admissions in accordance with their chronology of events which

proved to be incorrect at trial.

In his admissions of fact Defendant told police the following:

Q: Okay. Alright Tedrick there was uh incident that happened
uh on uh yesterday uhm which started on Monroe Street. Start telling
us what happened starting from Monroe Street . . .

....

A: Okay we rode … uh at first I was the driver. And then
Mike forced like made me like make him drive. Like let him drive.
While he was driving we went down Chester Street at first. And then
we made it to Monroe Street. We made a right on Monroe Street. We

7

rode down. And while I was in the passenger seat we made a couple
of shots. My home boy Taye was in the backseat.

Q: Okay. He—who made a couple of shots?

A: Mike. Mike shot a couple of shots, about two or three
shots.

Q: Okay. Did he—where was Mike sitting at?

A: He was in the driver seat.

Q: Oh he was driving at that point?

A: On Monroe Street yes sir.

Q: Okay. And did he drive out of the … did he shoot out of
the sunroof?

A: No not on Monroe Street.

Q: Okay not on Monroe Street. Okay what was the guy name
that—do you know the guy that he—that y’all were shooting at?

A: No sir.

Q: That Mike shot at?

A: No.

....

Q: (Sgt. Green): Alright. Okay and the next thing y’all went
rolled—rolled down by Sixth Street is that correct?

A: Yes sir.

Q: Tell me what happened on Sixth Street?

A: We made it off the highway, off 49 on the exit to Lower
Third. We passed up Peabody. Alright we passed up Ed Payne’s
store and we made a right on Sixth Street. When we made a right on
Sixth Street and made it to the fork, to the fork in the road. Alright
then…then Mike was like hold on, hold on, hold on before we made it
down the street.

Q: Who was driving at that point?

A: I was driving.

8

....

A: Yeah and I came to a complete stop about on Solomon.

Q: Right.

A: about on Solomon Street I think, I made a complete stop.
....

A: He jumped out. He walked like up—like in front of the car
a lil’ bit. When he turned to the right I noticed he had a gun.

Q: Right

A: Again, well I already knew he had a gun cause he had shot
Q: Right

A: but I noticed when he asked me I noticed he had the gun.
So I hurried up and smashed the gas when I made a right on John
Thomas I think it is[.]

Q: uh-huh.

A: my home boy Taye was like hurry up and let me drive. You
go get us busted, like that. So I let him drive. He made the block and
picked Mike up. I was up in the backseat.

Q: Okay back on Sixth Street when Mike got out and he—he
fired a couple of rounds when he got out?

A: Yeah. I heard a couple of rounds shot.

....

Q: Alright. Alright. Then Travius wanted to drive?

A: Yeah.

Q: What happened then?

A: Alright uh Mike was driving I was in the backseat. And
Taye was up in the passenger seat. Uh we made it past … what that is
… the ball park Bringhurst field and I guess I was like noticed like
rode like up it like, cause I was like kind of lazy like laying like-on
like the headrest like this.

Q: Right.

9

A: with my hand to my head. And I just noticed Mike upping
the gun out the sunroof. That’s what made me like … really like
come to my senses; cause I had been smoking weed. When I seen that
I looked, I like tried to look to see who he was aiming the gun at, and
I ain’t seen nobody.

Q: Right

A: Then I heard like three shots. Well I seen him shoot like
three times you know. He hurried up and smashed off. After that we
went to—all went to MacDonalds and got something to eat.

Q: Uh-huh.

A: The he was said . . . well I asked him what he was fixing to
do with the car cause it was almost time for to take it back. He said he
got a spot to take it. And he pulled it right on like … what the name
of that street is… um Ninth Street I think it is. Six, seven … six,
seven…six, seven…on Eighth Street on a dead end street and parked
it there.

....

Q: Okay y’all just went separate ways from that point?

A: Yes sir.

Texas Avenue Shooting

In his statement, Defendant claimed the Texas Avenue shooting was the

third and final shooting, and that he was laying down in the back seat of the car

while Dotson was driving. Quontavius Frazier, aka “Taye,” was in the front

passenger seat. He stated Dotson fired three shots then “hurried up and smashed

off.” Defendant stated the first shooting was sometime between 8:00 and 9:00

p.m., and there was about three hours between the first shooting and the last. The

evidence, however, showed the first shooting occurred on Texas Avenue, not on

Monroe Street as suggested by the police when taking Defendant’s statement. The

first shooting resulted in the death of Mr. Joe Marzett. The only eyewitness to

testify with respect to this shooting, Mr. Jamarques Starling (Starling), testified he

10

heard the shots between 11:30 and 11:45 p.m. on September 27, 2011, then shortly

thereafter saw an “old school” Buick drive past. Noting this was the only car he

saw on Texas Avenue for about ten minutes, Starling testified Defendant was not

the driver of the car, although he did not get a good look at anyone else in the car.

He was also unsure of the color of the car, describing the car at different times as

light blue, gray, dark blue, and black. Insistent the car was an “old school” Buick,

Starling’s testimony did not connect the Honda Accord Defendant was in on the

night in question to the scene of the crime.

Starling testified the shooting occurred between 11:30 and 11:45 p.m. but

Defendant said in his statement the first shooting occurred between 8:00 and 9:00

p.m. Special Agent Williams mapped Defendant’s cellphone usage around 11:55

p.m. There was a single text message which occurred at exactly 11:55 and the map

notes that the phone was using sectors of the tower3 that would place the phone

northwest of the shooting. Another map of the area shows that prior to 11:50,

Defendant’s phone was being used in areas well away from the scene of the

shooting, including on the opposite side of Highway 167 between 11:44 and 11:47

p.m., placing Defendant’s phone somewhere between several blocks to a couple of

miles away. Williams testified he did not “have any geolocation – a fancy way of

saying general location – of the phone between eleven thirty and eleven forty-

five.”

Given that Starling could not identify either the Defendant or the car in

which he was riding, nor could Special Agent Williams give any information

regarding Defendant’s location at the time of the shooting, the only evidence

3
Special Agent Williams testified that each cell tower has three different sectors, each
with a specific ID, and that each sector covers areas in different directions from the tower.

11

creating any connection between Defendant and the Texas Avenue shooting is

Defendant’s admission to police. That admission is contradicted by the other

evidence presented. Defendant claimed they sped away from the shooting, while

Starling says the vehicle was going slow when it passed him, only going “[f]ive to

ten miles per hour.” Defendant’s statement regarding the timing of the shootings

places this shooting as the last shooting but all of the evidence presented

establishes this was the first shooting to occur. The first shooting did not occur on

Monroe Street as police suggested to Defendant when taking his “statement.”

Given that the only part of Defendant’s admission which is supported by any of the

other evidence is the fact that someone actually fired a gun on Texas Avenue.

Monroe Street Shooting

Defendant’s statement indicated there were only three people in the vehicle

at the time of the Monroe Street shooting: Defendant, Dotson, and Frazier.

Defendant also indicated Dotson fired two or three shots and that the shooting was

the first shooting which occurred sometime between 8:00 and 9:00 p.m. on

September 27, 2011, rather than after midnight on September 28, 2011 as the

evidence showed. Daryl White (White) testified he was walking down Monroe

Street towards a friend’s house when he saw a car drive past him, turn a corner and

stop, and then someone fired about six shots at him. Specifically noting he got a

good look at the car while it was stopped under a streetlight, White stated he

believed the vehicle was gray, and was certain that the windows were all tinted,

except that the tint on the front passenger side was torn, so he was able to see into

the car and saw four people in the car. He testified he could not identify them. He

also stated that after he was shot in the leg he took off running to his friend’s

house. He says it took him about five minutes to get there and his friend

12

immediately called 9-1-1. That call came in at 12:24 a.m., which would indicate

the shooting was at roughly 12:19 a.m.

Special Agent Williams presented geolocation data for Defendant related to

the Monroe Street shooting. Based on an approximate shooting time of 12:23 a.m.,

Defendant’s phone usage between 12:21 and 12:24 a.m. placed him somewhere

within a large area of North Alexandria which also included the location of the

shooting at the intersection of Florence Avenue and Monroe Street. Williams,

however, provided no evidence as to where Defendant’s phone was located

immediately prior to this three-minute window, and could not pinpoint where in

the general highlighted area Defendant’s phone was actually located. The area

serviced by the tower Defendant’s phone used during this timeframe covers most

of the area between N. MacArthur Drive and Interstate 49 that is north of Jackson

Street and extends east past I-49 to some extent.

State’s Exhibit 13, a photo of Chris Newell’s vehicle, shows a Honda

Accord with no tint on any of the windows, much less any torn tint on the

passenger side of the car. Given the discrepancy between Defendant’s description

of how many people were in the car and White’s certainty there were four people

in the car, as well as the failure of Newell’s vehicle to actually match the detailed

description of the car given by White, added to the inaccurate timeframe given for

the shooting by Defendant, no rational jury could have found beyond a reasonable

doubt the State met its burden of excluding “every reasonable hypothesis of

innocence.” Defendant’s conviction and sentence for the attempted second degree

murder of Daryl White should be vacated.

Ninth Street Shooting

13

In his recorded statement to police, Defendant stated he was driving down

“Broadway,” and:

We passed up Peabody. Alright we passed up Ed Payne’s store and
we made a right on Sixth Street. When we made a right on Sixth
Street and made it to the fork, to the fork in the road. Alright then
…then Mike was like hold on, hold on, hold on before we made it
down the street.

Defendant’s stated route would have been going north on Broadway

Avenue.4 Payne’s Grocery is on Broadway Avenue between Seventh and Sixth

Street. Taking a right onto Sixth Street would have led them down to a fork in the

road where Sixth and Seventh Street merge. Solomon Street, where Defendant

claims he made a complete stop before Dotson jumped out of the car, dead ends

onto Sixth Street immediately before the fork. While this testimony provides a

very detailed description of the shooting, there is one major flaw: Peterson was on

Ninth Street, not Sixth Street, when the shooting took place. Although the State’s

brief to this court does nothing to address the fact that the shooting happened on

Ninth Street, and both Defendant’s statement and Guillot’s testimony specifically

talk about Sixth Street without a single mention of Ninth Street, they argued during

their closing that confusing two numbered streets is an easy mistake to make.

That, however, ignores the fact that: 1) Defendant actually lived on Sixth Street; 2)

his detailed description of their route is completely accurate aside from claiming

the shooting was on Sixth Street; and 3) Guillot specifically noted he was familiar

with the city of Alexandria, having lived there his entire life.

4
Defendant’s described route can be traced on Google Maps and the validity of that
information can be accomplished using the City of Alexandria’s website at
parksandrec.cityofalexandriala.com. Although there are multiple maps included as exhibits, they
lack relevant street names. State’s Exhibit 27 was an enlarged map which may have included the
street names, however, that exhibit was not submitted with the record. Accordingly, Google
Maps was used to verify the street names for the streets shown on the included exhibits.

14

At 12:49 a.m. on September 28, 2011, the RCPD received a call from

Marion Peterson (Peterson) reporting someone shot at him on Ninth Street.

Peterson told law enforcement at the time of the shooting he saw a vehicle

swerving in the road, it tried to hit him, then the car stopped, the passenger jumped

out, swore at him, and then shot at him twice. He further testified that despite

telling two separate officers on the night of the shooting that the vehicle was a dark

blue, four-door Nissan with tinted windows, he is not sure if that description is

accurate. He also said he had been drinking at the time. Thus, his testimony is

somewhat suspect under State v. Hypolite, 14-1658 (La.App. 3 Cir. 6/1/05), 903

So.2d 1275. Peterson could not say with certainty whether or not Newell’s vehicle

was the car from which shots were fired at him. He also stated it took him about

ten minutes to compose himself before he called RCPD, thus placing the shooting

at roughly 12:40 a.m.

Despite Peterson’s testimony that the shooting took place at about 12:40

a.m., Special Agent Williams’s analysis of Defendant’s cellphone lists an

approximate shooting time of 12:52 a.m., and the earliest activity on the map is a

text message at 12:45 a.m., roughly five minutes after the actual shooting.

Additionally, according to the map produced by Williams for trial, none of the

activity charted places Defendant in an area that includes the location where the

shooting took place.

Guillot testified that while he was in a holding cell shortly after being

arrested at 8:30 p.m. on September 28, 2011, he heard Defendant tell another

individual he shot at someone on Sixth Street. This testimony is alleged to have

happened in a holding cell during a period of time when Defendant was

demonstrably not in the same holding cell, and contains details that do not relate to

15

the shooting on Ninth Street. None of the evidence presented to the jury actually

places Defendant on Ninth Street when some unknown person shot at Peterson.

Even when viewed in the light most favorable to the prosecution, no rational jury

could have found beyond a reasonable doubt that the State met its burden of

excluding “every reasonable hypothesis of innocence.” Defendant’s conviction

and sentence for the attempted second degree murder of Marion Peterson should be

vacated.

This is a circumstantial evidence case.

With regard to the three shootings, Defendant argues the State’s case against

him rested solely on his own admission of being present at the crimes, expert

testimony from an FBI Special Agent regarding the general location of his cell-

phone around the times of the shootings, and the statement of a witness who

claimed to have seen Defendant with a gun after the shootings as well as having

overheard Defendant admit to shooting at someone. He argues both of these forms

of evidence are circumstantial evidence, and thus, under La.R.S. 15:438, the State

must exclude every reasonable hypothesis of innocence in order to obtain a

conviction. I believe Defendant is correct in his assertion that the State’s entire

case, at least with regard to the three shootings, is built upon circumstantial

evidence. I believe the majority errs in applying a standard of review applicable

to a case in which there is both direct and circumstantial evidence. Despite the

State’s argument before the trial court that Defendant’s statement is direct

evidence, under Louisiana jurisprudence the statement was circumstantial

evidence. The state supreme court has explained:

Generally, direct evidence consists of testimony from a witness
who actually saw or heard an occurrence, proof of the existence of
which is at issue; whereas circumstantial evidence consists of

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collateral facts and circumstances from which the existence of the
main fact may be inferred according to reason and common
experience. . . . Where an essential element of the crime is not
proven by direct evidence, La.R.S. 15:438 applies. That rule
restrains the fact finder, as well as the reviewer on appeal, to
accept as proven all that the evidence tends to prove and then to
convict only if every reasonable hypothesis of innocence is
excluded.

State v. Lilly, 468 So.2d 1154, 1158 (La.1985) (emphasis added).

There is a difference between a confession, which is direct evidence, and an

admission, which is circumstantial evidence. While the State argues Defendant’s

statement is direct evidence, the statement is an admission, not a confession. “The

term ‘admission’ is applied to those matters of fact which do not involve criminal

intent; the term ‘confession’ is applied only to an admission of guilt, not to an

acknowledgment of facts merely tending to establish guilt.” State v. Jones, 451

So.2d 35, 40 (La.App. 2 Cir.), writ denied, 456 So.2d 171 (La.1984). Defendant’s

statement does not involve criminal intent. Although he admits to being in the car

while the shootings were happening, he clearly states that someone else, Michael

Dotson (Dotson) was doing the shooting. Defendant was not even aware that

Dotson was shooting at people, believing he was simply shooting the gun in the

air.

The State then is left with Daniel Guillot’s (Guillot) testimony that he

allegedly overheard Defendant tell someone else he “busted somebody on Sixth”

street. There are two problems with relying on Guillot’s statement: (1) the

circumstances under which he claims the statement happened are demonstrably

false in the record, and (2) no one was actually shot on Sixth Street. Guillot

vehemently testified he was put in the holding tank between 8:30 and 9:00 p.m.,

and that he overheard Defendant tell another inmate he shot at someone on Sixth

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Street about thirty to forty-five minutes later. Sergeant DiStafano started

interviewing Defendant at 8:30 p.m. that day, and Defendant was in an interview

room with officers until after he gave his statement, which was recorded at 11:11

p.m. It was physically impossible for the conversation Guillot was adamant

happened between 9:00 and 10:00 p.m. in the holding area to have occurred at that

time. But, even setting aside the fact that the conversation could not have taken

place the way Guillot described it, the statement was at best circumstantial in

relation to the three shootings that actually occurred on September 27 and 28,

2011. The alleged statement contained few relevant facts and does not match other

known evidence presented at trial. In Jones, the second circuit found that a

defendant’s statement he shot someone with a gun which he threw into the river

was an admission, as it did not involve intent nor did it state “the victim’s name,

the purpose of the shooting, where the shooting occurred, or any other event

relating to the shooting.” 451 So.2d at 40. Similarly, the statement Guillot claims

to have overheard does not involve intent, and while Guillot testified that it did

include the location of the shooting, the location is not a location where an actual

shooting took place. Additionally, even if this court accepted the State’s claims

that Defendant simply confused Sixth Street and Ninth Street, the statement still

would not be direct evidence with respect to the Texas Avenue or Monroe Street

shootings.

Error in jury instructions.

In his argument to this court regarding sufficiency of the evidence,

Defendant asserted the case was based purely on circumstantial evidence and the

jury should therefore have been informed that under La.R.S. 15:438, the State was

required to “exclude every reasonable hypothesis of innocence.” Additionally, he

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noted Defense counsel at trial twice requested that the jury be informed of this

requirement. As noted previously, the trial court incorrectly denied that request on

the grounds that Defendant’s admission and Guillot’s testimony amounted to direct

evidence. Although this error was not raised as an assignment of error, “Louisiana

courts have recognized certain rights are so basic and ‘due process’ requirements

mandate that they may be asserted for the first time on appeal or noticed as an error

patent by mere inspection of the pleadings and proceedings.” State v. Pyke, 93-

1506, p. 3 (La.App. 3 Cir. 5/4/94), 640 So.2d 460, 462. Accordingly, this court

may review this error of law despite it not being set out as an assigned error.

In State v. Porter, 626 So.2d 476 (La.App. 3 Cir. 1993), this court reversed a

conviction for attempted second degree murder due to an erroneous jury

instruction, noting that the issue was a due process violation that should be dealt

with on appeal, despite trial counsel’s failure to object, rather than later post-

conviction relief “in the interest of fundamental fairness and judicial economy.”

626 So.2d at 479. The trial court deprived Defendant of his right to due process

by denying Defendant’s request to instruct the jury that where the State’s entire

case is based on circumstantial evidence, the evidence “must exclude every

reasonable hypothesis of innocence,”. See La.R.S. 15:438. The state supreme

court has repeatedly held jury instructions must be considered as a whole. Nothing

in the jury charge here would inform the jury of the State’s burden on

circumstantial evidence. The trial court did not mention direct evidence in its jury

instructions, and gave the following instruction on circumstantial evidence5:

5
It is not clear from the record what the source of this instruction is. It does not address
the distinction between direct and circumstantial evidence. The suggested jury instruction for
“Direct and circumstantial evidence” in the Louisiana Civil Law Treatise is simply:

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. . . circumstantial evidence is [sic] facts or circumstances from which
one might infer or conclude according to reason and common
experience the existence of other connected facts. Further,
circumstantial evidence is that where the main fact can be inferred
when using reason and common sense from proof of collateral facts
and circumstances. Circumstantial evidence further involves, in
addition to the assertion of witnesses as to what they have observed, a
process of reasoning or inference by which a conclusion was drawn.
The gist of circumstantial evidence and the key to it is the inference or
process of reason by which the conclusion is reached. This must be
based on the evidence given together with the sufficient background
of human experience to justify the conclusion.

Not only was the jury not informed that the State’s circumstantial evidence

“must exclude every reasonable hypothesis of innocence,” they were not informed

of the definition of direct evidence, or of the distinction between the two. See

La.R.S. 15:438. Accordingly, Defendant’s convictions with respect to the

shootings should be reversed due to improper jury instruction. Under the holding

in Porter, these charges should be remanded to the trial court for a new trial, as the

reversal would be based not on evidentiary insufficiency but rather trial court error.

626 So.2d at 47.

Possession of a firearm by a convicted felon.

I agree with the majority’s finding that Defendant’s conviction for

possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1, and

his sentence therefor, should stand. In order to convict Defendant, the State

needed only to prove Defendant was a convicted felon and he in fact possessed a

firearm. See State v. Mose, 412 So.2d 584 (La.1982). During trial, Defendant and

Evidence is either direct or circumstantial. Direct evidence is evidence
which, if believed, proves a fact. Circumstantial or indirect evidence is evidence
which, if believed, proves a fact and from that fact you may logically and
reasonably conclude that another fact exists.

You cannot find a defendant guilty solely on circumstantial evidence
unless the facts proven by the evidence exclude every reasonable hypothesis of
innocence.

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the State entered a joint stipulation that Defendant had a prior felony conviction for

Possession of CDS II. Additionally, Guillot testified he saw Defendant around

1:30 a.m. on September 28, 2011, with a silver and black gun in his waistband.

Unlike Guillot’s testimony regarding the other offenses, his testimony regarding

the gun is not contradicted by concrete physical facts. Viewing this evidence in the

light most favorable to the prosecution, a rational jury could have found Defendant

guilty beyond a reasonable doubt as to this offense.

For these reasons set forth in extenso I respectfully dissent from the

majority’s affirmance of Defendant’s conviction for the three shootings. The

convictions based on the three shootings should be reversed and the case remanded

for a new trial.

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