State v. Jefferson

302 So.3d 567

STATE of Louisiana

v.Johnny E. JEFFERSON Jr.

NO. 2019-KA-0522

Court of Appeal of Louisiana, Fourth Circuit.

JULY 22, 2020

Leon Cannizzaro, District Attorney, Donna Andrieu, Kyle Daly, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE

Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, Johnny E. Jefferson, Jr., Louisiana State Prison Pine #4 Bed #69, 17544 Tunica Trace, Angola, LA 70712, COUNSEL FOR APPELLANT

(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )

Judge Joy Cossich Lobrano

JCL, DLD, TGC Defendant, Johnny E. Jefferson, Jr. ("Defendant"), appeals his conviction for the second-degree murder of Sam Carter ("Victim"). Following a jury trial, Defendant was found guilty as charged. For the reasons that follow, we affirm the conviction and sentence.

Procedural History

Defendant was charged with the second-degree murder of Victim on August 11, 2016, in violation of L.S.A.-R.S. 14:30.1.¹ He pleaded not guilty. The district court denied the defense motion to suppress DNA evidence. The State's motions to prohibit character evidence about the alleged victim and to invoke firearm sentencing were granted.

During jury selection, Defendant made a motion to dismiss the entire second panel due to the State's use of the facts of the case and alleged misstatements as to the burden of proof. That motion was denied.

On the second day of trial, the district court denied a defense motion to remove a juror found taking notes. Defendant's motions for mistrial based on improper and prejudicial statements during closing arguments were also denied. After deliberation, the jury unanimously found Defendant guilty as charged.

On February 12, 2019, the district court denied Defendant's motions for new trial and set aside judgment and Defendant waived delays. The district court sentenced Defendant to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant objected to the sentence but no motion to reconsider the sentence was filed. This timely appeal followed.

Trial Testimony

On August 11, 2016, an anonymous 911 call reported a shooting in the 2200 block of Peniston Street. Police responded and found Victim lying unresponsive suffering from four gunshot wounds : two in the chest, one in the buttocks, and one in the back. Surveillance footage from a nearby home showed Victim stumbling before a black male wearing a black sleeveless shirt walked up to him and shot him in the back. While it had been raining heavily when police arrived, a relatively dry black shirt was found nearby and appeared to have been recently discarded.

New Orleans Police Department ("NOPD") Homicide Detective Maggie McCourt, the lead investigator, testified at trial. When she arrived on the scene, Det. McCourt spoke with police already present and proceeded to canvass the area for evidence and witnesses. Det. McCourt found a white shirt² next to Victim's body. No one was willing to speak to the police, but officers located residential surveillance video of the scene. While viewing the video at trial, Det. McCourt explained that Victim was seen stumbling and eventually falling to the ground.

Det. McCourt also identified the suspect running to Victim and shooting him once in the back, after which the suspect runs away.

Within five days of the shooting, NOPD received some anonymous tips that allowed Det. McCourt to begin an investigation.³ One week after the shooting, Det. McCourt learned through a Crimestopper tip that the shooter went by the name "Black." In December 2016, another Crimestopper tip identified Defendant as the shooter and the names of two possible witnesses. Det. McCourt searched the NOPD Field Interview Card ("FIC") database and found a card indicating that Defendant was interviewed about an unrelated matter on April 26, 2015. The card described him as 5’11" and weighing one hundred eighty pounds, which, according to Det. McCourt, fit the description of the shooter seen in the surveillance video. Based on the second Crimestopper tip, Det. McCourt developed as witnesses, K.H. and her daughter, L.C., who lived on Amelia Street. Det. McCourt spoke to K.H., who agreed to give a statement at the homicide office.⁴ K.H. described the suspect and what he wore at the time of the shooting. Her description was consistent with the shooter seen on the video surveillance.⁵ Det. McCourt displayed a confirmation photo of Defendant to K.H., and she positively identified him as the shooter. Further, K.H. recalled that Victim was initially shot near the intersection of Amelia and South Liberty Streets, which is where the police recovered a black t-shirt. Det. McCourt confirmed that the murder weapon was not recovered.

Det. McCourt also identified a copy of an Instagram message sent to "Joe," given to her by a concerned citizen.⁶ The Instagram read: "Joe, I know who killed Sam. Black killed Sam. My momma don't have nothing to do with that, so leave me and my people out of this. Sorry for your loss."

K.H. testified at trial she knew Defendant and identified him in court. She had known Defendant about two or three years and he often used her home to shower, sleep, and eat. Victim, who went to school with her daughter, was also an occasional visitor.

On the day of the shooting, K.H. saw Victim at about 5:00 p.m. riding in "Joe's" car on Amelia Street. Victim exited the vehicle and told her that he and Defendant "had just gotten into it." Hoping to quell any rancor between Victim and Defendant, she discouraged Victim from instigating a fight. Soon thereafter, Defendant and L.C. arrived and stood behind K.H. Victim and Defendant began arguing and as K.H. was looking at Victim, gunfire erupted from directly behind her where Defendant was standing. Victim ran down the street and Defendant gave chase. K.H. heard a pop from around the corner and, when she looked, she saw Victim lying in a pool of his own blood.

The State played the video surveillance footage for K.H. to identify herself, her daughter, Victim's body, and "Joe" driving his car onto the scene. K.H. positively identified Defendant in court as the shooter depicted in the video. Fear of retaliation prevented her from immediately contacting the police.

L.C. also testified. She stated on the day of the shooting, she and Defendant arrived at her residence where Victim and her mother were talking in the front yard. After several minutes of watching Defendant, Victim, and her mother exchange words, she began walking towards her home when she heard several gunshots. She turned and saw Defendant running after Victim. When she followed her mother around the corner, she saw Victim lying on the ground. L.C. testified she did not speak to police out of fear of retaliation.

Defendant's DNA profile matched that found on the black shirt recovered by the police between K.H.’s residence and the location of Victim's body.

Error Patent

A review for errors patent on the face of the record reveals none.

Assignment of Errors

Defendant has assigned four errors for our review:

1. The trial court erred in denying the motion to dismiss the second prospective jury panel that was prejudiced when the court mistakenly allowed the State to use the facts of the case and skew the burden of proof during voir dire .

2. The trial court erred in allowing a juror who had been taking notes to keep the notes and stay on the jury, over defense objection, and without allowing any inquiry into the error.

3. The trial court erred in allowing the State to use vast amounts of hearsay evidence and "street talk" into evidence, including Crimestopper tips, officer's narration of a video, an anonymous phone tip, and an interview of a person who posted an Instagram about the case; Defendant was denied a fair trial, due process of law, and his right of confrontation.

4. The trial court erred in denying the motions for mistrial based on the improper, inflammatory and prejudicial closing arguments of the State that shifted the burden of proof to the defense and distracted the jurors from dispassionately weighing the evidence.

Discussion

Assignments of Error Number 1 and 2

Defendant's first two assignments of error issues relate to the jury. First, Defendant maintains that the district court erred when it failed to dismiss the second prospective jury panel on the basis the prosecutor tainted the panel during voir dire by misstating the law, particularly as to the burden of proof, and by using the facts of the case in his examination. Second, Defendant argues the district court erred in allowing a juror who was taking notes to remain on the jury.

Whether or not to strike a single juror or an entire panel is committed to the discretion of the district court. State v. Lucky, 96-1687, p. 13 (La. 4/13/99), 755 So.2d 845, 853 ; State v. Conklin , 18-0718, p. 12 (La.App. 1 Cir. 2/28/19), 274 So.3d 675, 684, writ denied, 19-00665 (La. 10/8/19), 280 So.3d 591. While the defense claims the following comments by the prosecutor during voir dire tainted the jury panel, Defendant did not object at the time:

Very quickly. As I said, this is one the most heinous things you can do in this world but it is also the simplest of elements to prove. Number one, we must prove that [Victim] is dead. Somebody's going to come in and tell you that [Victim] is no longer alive. Number two, we must prove that Defendant killed him with the intent to kill him or with intent to cause great bodily injury and he just happened to die. All right?

In Louisiana we only must prove that he intended to but intent forms in an instant ... But that light, it went red and you just said, I'm going, right? It's the same thing with murder. It may not have been planned. Mr. Lopez makes me upset. I've got a beer bottle. I hit him across the face. That's murder. I intended to hit him. I intended to cause an injury. I intended to kill him. That forms in an

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