State of Louisiana v. Ali Lee Barconey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-871

STATE OF LOUISIANA

VERSUS

ALI LEE BARCONEY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3816-15
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Elizabeth A. Pickett, Judges.

CONVICTION AFFIRMED;
REMANDED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
Fourteenth Judicial District
Carla S. Sigler
Charles Robinson
Karen C. McLellan
Assistant District Attorneys
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O.Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Ali Lee Barconey

Ali Lee Barconey
Main Prison
Louisiana State Prison
Angola, LA 70712
PRO-SE
Ali Lee Barconey

SAUNDERS, Judge

On January 8, 2015, Defendant, Ali Lee Barconey, was charged by bill of

indictment with the September 25, 2014 second degree murder of Nathaniel

Reynaud, in violation of La.R.S. 14:30.1. Three codefendants, Travis Syntel

Barber (“Mr. Barber”), William Lee Carter (“Mr. Carter”), and Bryant Anthony

Payne (“Mr. Payne”), were also charged with second degree murder. A fourth

codefendant, Ineatta Stevens Arrington (“Ms. Arrington”), was charged with

obstruction of justice under La.R.S. 14:130.1(A)(1).

On March 22, 2017, Defendant proceeded to trial. Following three days of

testimony, the jury found Defendant guilty as charged in an 11-1 vote. On April

10, 2017, the trial court sentenced Defendant to a mandatory life sentence without

benefit of probation, parole, or suspension of sentence.

Defendant now appeals his conviction and sentence, raising two assignments

of error, as follows: (1) there was insufficient evidence to support his conviction

for second degree murder; and (2) the trial court erred in denying his repeated

objections to La.Code Crim.P. art. 782(A).

FACTS:

Dwayne Willis (“Mr. Willis”) testified that he and his wife were present at

Howard Olivier’s (“Mr. Olivier”) house talking with Mr. Olivier and the victim,

Nathaniel “Dirty Red” Reynaud (“Mr. Reynaud”), when they saw three people

burst into the house with guns. Mr. Willis could not identify the three individuals,

as he testified they were wearing ski masks or bandannas over their faces. He

testified that during a struggle in the hallway of the house, he was shot on the side

of the head. Mr. Willis further testified that all three intruders were shooting guns

and that he was shot with a revolver.

Mr. Olivier took the stand next. Mr. Olivier admitted that he had been

selling drugs for “[a] long time, some years, some years.” He testified that he and

Mr. Reynaud were sitting around with Mr. Willis and Mr. Willis’s wife when

someone kicked in his front door. He and Mr. Reynaud had both been doing

cocaine. He was shot twice, and after running into Mr. Willis, he jumped out of

the window of his back bedroom. He, like Mr. Willis, was unable to identify the

assailants who entered his home.

Mrs. Lekena Pappion (“Mrs. Pappion”), Mr. Willis’s wife, testified that she

and her husband went to visit her sister-in-law who lives next door to Mr. Olivier

when they saw Mr. Olivier and Mr. Reynaud. She testified that as she and her

husband were preparing to leave Mr. Olivier’s home, the front door flew open, and

three men, all wearing black with their faces covered, entered. Mrs. Pappion

testified that she escaped out the front door and hid by her car while two of the

intruders were in the back of the trailer with her husband and Mr. Olivier. She

testified she heard two loud shots shortly after she made it out of the trailer, which

sounded to her like they were in the living room where Mr. Reynaud had been

previously sitting. She testified that the third gunman did not shoot them and took

off. She then checked on Mr. Reynaud, but he was already dead, so she tried to get

her husband medical help, as he was bleeding profusely. Like the prior witnesses,

Mrs. Pappion could not identify the gunmen, as their faces were covered.

Jennifer Hoffpauir (“Officer Hoffpauir”), an evidence officer with the Lake

Charles Police Department, testified that she took photographs of the crime scene.

She also identified a black ski mask recovered from the hallway of Mr. Olivier’s

residence. Officer Hoffpauir also obtained video surveillance from two businesses

in the area, Dyer’s Tires and Southwest Mobile Home. The footage from Dyer’s

Tires showed what appeared to be Defendant’s Chevy Trailblazer entering Allen
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Street, the dead-end street on which this shooting took place, a few minutes before

the 9-1-1 call reporting the incident was received. The vehicle left Allen Street

moments before the call was received. Officer Hoffpauir acknowledged that

although the vehicle in the video appeared to be Defendant’s vehicle, which was

subsequently seized and searched pursuant to a warrant, it was impossible to

definitively say that it was the same, as the videos did not capture the license plate

she could not see who was in the vehicle.

Dr. Terry Welke (“Dr. Welke”) was accepted by stipulation as an expert in

the fields of medicine and forensic pathology. Dr. Welke testified that Mr.

Reynaud was shot in the lower back from within two feet. He also testified that

Mr. Reynaud was shot in the back of the head, though he could not definitely say

whether that gunshot was within two feet, or if it was farther. Dr. Welke felt that

Mr. Reynaud was likely shot in the back first then shot again with the “execution

style” shot to the head. He stated that Mr. Reynaud’s death was a homicide caused

by a “gunshot wound to the head.” He also stated that the bullets recovered from

Mr. Reynaud’s body were large caliber, but he could not give a specific caliber

size.

Ms. LeAnne Suchanek (“Ms. Suchanek”), a former DNA Technical

Manager for the Southwest Louisiana Crime Lab, was accepted by stipulation as an

expert in the field of DNA testing. Ms. Suchanek testified that she was the DNA

analyst of record for the evidence recovered in this case. She tested a black mask,

two black socks, and a black head wrap. She noted there was more than one

contributor of DNA on the mask, a major contributor on the head wrap, and a

multiple contributor mixture on the bloodstains on the socks. Ms. Suchanek

testified that she ran the major contributor for the mask and the head wrap through

the Combined DNA Index System (CODIS) and received a notification that the
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major contributor for the mask could be Defendant, whose DNA was in the system

due to a prior armed robbery conviction. She further testified that she compared

the major contributor from the ski mask with a blood sample taken from

Defendant, and it was a match with “the probability of randomly selecting an

individual from the general population with that same DNA profile [was]

approximately one in 881 quadrillion.” She also noted the major contributor for

the head wrap was Mr. Willis.

Sergeant Keith Lacosio, with the Jefferson Parish Sheriff’s Department,

identified Defendant as the individual he arrested in 2002, for the armed robbery of

a cab driver. Defendant pled guilty to armed robbery on May 21, 2002 and

received a ten-year sentence.

Detective Colby Thompson (“Detective Thompson”) of the Lake Charles

Police Department testified that he headed the investigation into Mr. Reynaud’s

murder. Detective Thompson testified that after he received the CODIS hit on

Defendant’s DNA being the major contributor on the ski mask, another detective

drove by Defendant’s home and noticed that the vehicle parked there appeared to

match the vehicle in the video footage obtained from businesses near the shooting.

The vehicle’s license plate was run through the Department of Motor Vehicles

database and found to be registered to Defendant and his wife, Mrs. Arrington.

Detective Thompson noted that when the search warrants for Defendant’s home

and vehicle were executed, Mr. Barber and Mr. Carter, who admitted that they

were the two other intruders in Mr. Olivier’s home, were also at the home.

Detective Thompson testified that while searching Defendant’s vehicle, he found a

small sawed-off shotgun behind the driver’s seat. He stated that one of the

individuals pointed him in the direction of Mr. Payne as also being involved.

Detective Thompson and his team obtained a search warrant for Mr. Payne’s home
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and recovered three loaded weapons, none of which were involved in the murder

of Mr. Reynaud.

Brandy Love-Bodin, an evidence officer with the Lake Charles Police

Department, testified that she recovered six cell phones from Mr. Payne’s home,

including a black cell phone which was entered into evidence as State’s Exhibit 56.

Lieutenant Tim Richards of the Lake Charles Police Department testified that he

did a data extraction on State’s Exhibit 56. He testified that the phone belonged to

Mr. Payne.

Mr. Payne stated that he was testifying as part of a plea deal whereby the

State would allow him to plead guilty to two counts of illegal possession of

firearms in exchange for “[his] honest testimony.” Mr. Payne testified that he had

known Defendant since they were teenagers and that they reconnected around

2012. He testified that despite being a convicted felon, he frequently purchased

and sold stolen weapons. He stated Defendant and his wife asked him for a gun

while they were working in his recording studio because they had someone they

wanted to rob and that he refused to sell them one. He further testified that about a

week later, Defendant called him claiming someone tried to break into Defendant’s

studio and again asked for a weapon, this time for protection. At that time, he gave

Defendant a .45 caliber Ruger revolver, although all he knew about the model was

that it started with a “V.”

Mr. Payne testified that he later asked Defendant via Facebook and text

messaging about the gun, but Defendant would not give him the gun back. Mr.

Payne testified that about a week after Mr. Reynaud’s murder, Defendant told him

“that was his work, and he started laughing.” Mr. Payne stated he did not call the

police because he did not take Defendant seriously. He also acknowledged that he

did not tell the police everything he knew when he was initially arrested.
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Mr. Charles Watson (“Mr. Watson”), a Forensic Scientist with the Louisiana

State Police Crime Lab, was accepted by stipulation as an expert in the fields of

ballistics and firearm examination. He testified that the bullets recovered from the

victim were fired from a .45 caliber revolver, and he noted that Ruger made a .45

caliber gun called a “Viquero.” Mr. Watson finally testified that none of the

weapons which were submitted to him for testing could have fired the bullet

fragments recovered from Mr. Reynaud.

Mr. Carter, Defendant’s nephew and codefendant, testified that after they

had spent the day drinking, Mr. Barber decided that he, Mr. Carter, and Defendant

should commit the robbery that led to Mr. Reynaud’s death. He stated that Mr.

Barber distributed the weapons, keeping the sawed-off shotgun for himself, and

giving him a long shogun, and Defendant a revolver. Mr. Carter claimed that he

was unfamiliar with the area, but that they took Defendant’s Trailblazer and

headed to the house they had previously passed on the way back from drinking.

Mr. Carter testified that Mr. Barber kicked down Mr. Olivier’s door and entered

first, with Defendant second and him bringing up the rear. Mr. Carter testified

that, as far as he was aware, Defendant was the only person whose gun was loaded.

Mr. Carter further testified that when he entered the trailer, he did not see

Mr. Barber, but Defendant had Mr. Reynaud at gunpoint in the living room. He

claims that he told Defendant to follow Mr. Barber, as he was “going to hold it

down right cher[sic].” According to Mr. Carter, he turned when Mrs. Pappion ran

past him out the door, and at that point, Mr. Reynaud jumped up and attacked him.

He claimed he was struggling with Mr. Reynaud for control of the gun when

Defendant came back into the room and shot Mr. Reynaud in the back. Mr. Carter

testified that after he and Defendant realized that he had not been shot by the

bullet, Mr. Reynaud fell to the ground, and when moved after he had fallen,
6

Defendant panicked and shot him in the head. He testified that Defendant put the

gun to the victim’s head, with the barrel touching skin, and pulled the trigger. At

that point, he and Defendant fled the trailer and waited for Mr. Barber to rejoin

them outside before driving off in the Trailblazer, which he and Mr. Barber

subsequently ditched in Iowa, Louisiana. Mr. Carter stated that he struck a plea

deal to provide “truthful testimony” against Defendant, his uncle, in exchange for

pleading guilty to armed robbery. He also acknowledged that he pled guilty in

September of 2016 to aggravated battery, a reduced charge that was originally

attempted murder. Mr. Carter noted that Defendant used a black mask to keep the

wind off his face when he was working offshore. He disagreed with the coroner’s

statement that the barrel of the gun was not touching the victim on either shot,

insisting the gun was touching skin.

PATENT ERROR REVIEW:

In reviewing the record for errors patent, this court finds that the trial court

gave the Defendant erroneous advice as to the time period for filing post-

conviction relief. The Defendant was advised at sentencing that he has two years

“from today’s date and the sentence becoming final to file for post-conviction

relief.” According to La.Code Crim.P. art. 930.8, the prescriptive period for filing

post-conviction relief is two years, and it begins to run when a defendant’s

conviction and sentence become final under the provisions of La.Code Crim.P.

arts. 914 or 922. Although part of the trial court’s advisement was correct, we find

that the trial court’s statement that Defendant has two years from “today’s date”

was incorrect. Therefore, out of an abundance of caution, we direct the trial court

to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to Defendant within ten days of the rendition of

this opinion and to file written proof in the record of the proceedings that
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Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903

So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant argues the evidence presented by

the State was insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979), to identify Defendant as the perpetrator of the crime beyond a reasonable

doubt. The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Although Defendant has alleged that the evidence was insufficient to support

his conviction, his argument is based solely on issues of identification. Because

Defendant has failed to allege insufficiency with regard to any of the elements of

second degree murder, we will address only the issue of identification. As this

court has previously noted, “[w]hen identity is at issue, the State must negate any

reasonable probability of misidentification.” State v. Clark, 10-559, p. 4 (La.App. 3

Cir. 12/8/10), 52 So.3d 304, 307.

Defendant’s argument is that the State failed to prove that he was one of the

people who took part in the murder of Mr. Reynaud. This argument lacks merit.
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The State’s DNA expert, Ms. Suchanek, testified that Defendant was the

major contributor of DNA found on the black ski mask recovered from the crime

scene. Both Mr. Willis, and his wife Mrs. Pappion, testified that the intruders had

their faces covered, with Mr. Willis stating two were wearing ski masks.

Additionally, Defendant’s nephew and codefendant, Mr. Carter, testified that not

only was Defendant one of the intruders, but that Defendant was in fact the

individual armed with a revolver who shot Mr. Reynaud.

Defendant argues his DNA inside the mask does not prove he was present at

the crime scene, as there was testimony that he used the same type of mask at

work. Additionally, he argues that Mr. Carter was an unreliable witness whose

testimony on multiple details of the night’s events was contradicted by other

witnesses. Ironically, the only witness to provide testimony that Defendant used a

similar ski mask at work was Mr. Carter.

Defendant’s argument, with regard to Mr. Carter’s testimony, is

unpersuasive. While Defendant correctly points out that Mr. Carter’s testimony

regarding the proximity of the gun to the victim’s skin was contradicted by the

coroner, and Mr. Carter’s claim that only Defendant’s weapon was loaded, was

likewise contradicted by Mr. Olivier’s testimony that he was shot with the sawed-

off shotgun, the jury clearly believed Mr. Carter’s testimony vis-à-vis Defendant’s

involvement. As this court has previously stated:

In the absence of internal contradiction or
irreconcilable conflicts with physical evidence, the
testimony of one witness, if believed by the trier of fact,
is sufficient to support a conviction. The question of the
credibility of the witnesses is within the sound discretion
of the trier of fact, who may accept or reject, in whole or
in part, the testimony of any witness. The credibility of
the witnesses will not be re-weighed on appeal.

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State v. Westmoreland, 10-1408, p. 6 (La.App. 3 Cir. 5/4/11), 63 So.3d 373, 379,

writ denied, 11-1660 (La. 1/20/12), 78 So.3d 140 (quoting State v. Perry, 08-1304

(La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d

352).

Mr. Carter’s testimony that Defendant was one of the individuals who

entered Mr. Olivier’s home, and was the individual who shot and killed Mr.

Reynaud, is not contradicted by any of Mr. Carter’s other testimony, despite

discrepancies between his recollection of other details and the testimony of other

witnesses. Additionally, the presence of Defendant’s DNA inside a ski mask

recovered from the scene of the murder supports, rather than conflicts with, Mr.

Carter’s claim that Defendant was present in the house. Mr. Carter’s testimony

alone is sufficient to support Defendant’s conviction. This court will not re-weigh

the credibility of the witnesses in this case. Westmoreland, 63 So.3d 373.

Moreover, Defendant’s contention that Mr. Carter is an unreliable witness lacks

merit, as it does nothing more than ask this court to re-assess witness credibility on

appeal. Accordingly, Defendant’s assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NO. 2:

In Defendant’s second assignment of error, he argues that the trial court

erred in denying his numerous objections to Louisiana’s non-unanimous jury

verdict rule enunciated in La.Code Crim.P. art. 782 which states “[c]ases in which

punishment is necessarily confinement at hard labor shall be tried by a jury

composed of twelve jurors, ten of whom must concur to render a verdict.” As

noted by Defendant, the supreme court has recently upheld La.Code Crim.P. art.

782 as constitutional in State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d

738. Additionally, Defendant acknowledges the Supreme Court’s 1972 holding

that a state court conviction obtained by a less than unanimous jury was
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constitutional is still good law. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct.

1628 (1972). Defendant argues that recent supreme court rulings have called into

question the reasoning of the Apodaca opinion. However, Defendant can provide

no other support for his assertion that La.Code Crim.P. art. 782 is unconstitutional.

We find no merit to this contention.

Due to this Court’s prior determinations that Article
782 withstands constitutional scrutiny, and because we are not
presumptuous enough to suppose, upon mere speculation, that the
United States Supreme Court’s still valid determination that non-
unanimous 12-person jury verdicts are constitutional may someday be
overturned, we find that the trial court erred in ruling that Article
782 violated the Fifth, Sixth, and Fourteenth Amendments. With
respect to that ruling, it should go without saying that a trial judge is
not at liberty to ignore the controlling jurisprudence of superior
courts.

Bertrand, 6 So.3d at 743.

Defendant is asking this court to do exactly what the supreme court refused

to do in Bertrand – presume, based solely upon speculation, that the United States

Supreme Court will one day overturn Apodaca. Accordingly, we find that

Defendant’s assignment of error number two lacks merit.

CONCLUSION:

For the foregoing reasons, we affirm the trial court’s April 10, 2017,

conviction of Defendant for the charge of second degree murder. We further direct

the trial court to inform Defendant of the correct provisions of La.Code Crim.P.

art. 930.8, by sending appropriate written notice to Defendant within ten days of

the rendition of this opinion, and to file written proof in the record of the

proceedings that Defendant received the notice.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS

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