State v. Kirklin

STATE OF LOUISIANA v. LONNIE B. KIRKLIN, JR.A/K/A LONNIE BERNARD KIRKLIN, JR.

No. 21-550

Court of Appeals of Louisiana, Third Circuit

February 23, 2022

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO 341, 602 HONORABLE WILLIAM GREG BEARD, DISTRICT JUDGE

J Phillip Terrell, Jr.

Ninth Judicial District Court District Attorney

Kenneth A. Doggett, Jr.

Ninth Judicial District Court Assistant District Attorney

COUNSEL FOR APPELLEE:

State of Louisiana

Cynthia K. Meyer

Louisiana Appellate Project

COUNSEL FOR DEFENDANT/APPELLANT:

Lonnie B. Kirklin, Jr.

Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

BILLY HOWARD EZELL JUDGE

Defendant, Lonnie B. Kirklin, Jr., a/k/a Lonnie Bernard Kirklin, Jr., was charged by bill of information with the attempted second-degree murder of S.W., in violation of La.R.S. 14:27 and 30.1.^[1] After a trial by jury, Defendant was found guilty as charged. The court sentenced him to thirty years at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant is before this court challenging his conviction and sentence.

FACTS

Defendant and S.W., the victim, were friends who had become estranged several weeks before the incident at issue. On November 24, 2018, S.W. received a call from Ke'Asia Williams, a girl that Defendant had dated in the past. She asked that S.W. come over, and at the time she was located three houses down from where S.W. was located. Defendant's house was between the two. As S.W. was riding his bike past Defendant's house to meet Williams, Defendant and his uncle, Justin Sherman, approached S.W. from behind, and Defendant shot S.W. multiple times with a gun he had obtained from his uncle.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in refusing to enforce its order to transport Mr. Sherman, a material witness in the case. On November 16, 2020, defense counsel informed the judge in open court that he had twice subpoenaed Mr. Sherman a co-defendant who was incarcerated in Bossier Parish.^[2] Counsel had been informed that due to Covid, Bossier Parish would not transport the prisoner and that transportation would be the responsibility of Rapides Parish. Counsel said he contacted transportation "here" [Rapides Parish] and was told they would not transfer the prisoner to Rapides Parish due to Covid. The court clerk verified that the witness was subpoenaed. A return was not received, but the clerk confirmed that the subpoena was sent to the Bossier Parish Sheriff's Department for the following day's court date.

Defense counsel requested the court allow Mr. Sherman, whom he referred to as a "material witness," to testify via Zoom. The court denied the request, stating, "I can get him here." Defense counsel requested a continuance with no objection by the State. The court stated, "The court will grant that. The court will also contact DOC, tell them the nature of what the witness is about. That witness is a material witness that needs to be present in court[.]"

The trial was then set for December 7, 2020. Defense counsel asked if there was anything further he needed to do to subpoena Mr. Sherman or whether the court would handle it. The trial court:

No, sir. The court will handle that matter. I will contact DOC and I've had pretty good luck in getting incarcerated defendants present for hearing that needs to be had. So, I will take that. And as soon as I get word back from DOC, I will let both of you know their response. I'm expecting them to say he'll be here.

On December 3, 2020, pursuant to a written motion filed that day, the trial court issued an order for the Bossier Parish Sheriff's Office to release Mr. Sherman to Rapides Parish Sheriff Mark Wood and for Sheriff Wood to transport the witness on or before December 8, 2020, for a court hearing.

On December 7, 2020, the day before jury selection, defense counsel informed the court that a motion to transfer the witness was filed the previous week, and he asked the court to confirm the witness was on his way. The following colloquy then occurred:

THE COURT: Given the lateness of that filing, the Court didn't reach out to Bossier Parish because of the lateness of it. I asked for that motion a long time ago. And the court is not going to act on it. If you want to late [sic] until the last minute, you'll have to suffer from last minute. Either or both sides, State or the defense. If that motion went through the proper networks, I didn't reach out to Bossier Parish nor DOC because of the lateness of it. We were back here on November sixteenth. And when did that motion get filed, Madam Clerk?

CLERK: Twelve three.

THE COURT: Twelve three. Four days before - I don't think anybody can act upon anything that fast.

MR. WORD: Your Honor, the last time in court, I asked the Court if there was anything I needed to do on my behalf.

THE COURT: Yes, and I said: File a motion for transport by either side.

MR. WORD: Okay.

THE COURT: And the only one I got was from the State, I believe, last week. So, if you want your witnesses here, they need to have the witnesses here.

MR. SANDERS: Not from the State, from the defense.

. . . . THE COURT: I apologize, Mr. Sanders, I just saw the motion. So, therefore, if you file that motion on December fourth, you've had plenty of time since November sixteenth to file that motion.

MR. WORD: Yes, Your Honor.

Despite the court's statement that he told the parties a motion for transport needed to be filed, we find no indication in the record that the judge said this. As noted above, on November 16, he stated that he would contact DOC and let the parties know the response. For some reason, on December 3, 2020, defense counsel filed a motion to have Mr. Sherman transported which was granted by the court that day.

Defendant claims that the trial court's refusal to follow through on its agreement to contact DOC, to have Mr. Sherman transported, and to enforce its transport order resulted in a denial of his right to compulsory process and his right to present a defense. For these reasons, he contends his conviction should be set aside. The State contends the issue was not preserved for appeal due to the Defense's failure to object to the trial court's December 7, 2020 ruling.

In State v. Luna, 00-858 (La.App. 5 Cir. 10/31/00), 772 So.2d 249, writ denied, 00-3244 (La. 10/12/01), 799 So.2d 495, the defendant claimed his rights to present a defense and to compulsory process were denied because the trial court denied his motion to continue based on the absence of witnesses. The state contended that the record did not reflect a motion to continue the trial or a request for recess during trial. Additionally, the state argued no prejudice resulted from their absence because their testimony was not material to the defense presented at trial. The appellate court reasoned:

A continuance is defined as the postponement of a trial or hearing that is granted before the trial or hearing commences. A recess, on the other hand, is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. LA.-C.Cr.P. art. 708. A jury trial commences when the first prospective juror is called for examination. LA.-C.Cr.P. art. 761.

In this case, the record does not reflect that the defendant moved for a continuance before trial commenced on the basis that his witnesses were absent. The record reflects the defendant knew how to request a continuance, since he had filed a motion for a continuance of the April 1997 trial date. The defendant could have requested a continuance, but he did not. Rather, the defendant was satisfied to proceed to trial with the court's issuance of instanter subpoenas and attachments for his witnesses, in the event they failed to appear.

The record further reflects that after trial had commenced, the defendant continued to request information on the status of his witnesses. Before opening statements on June 24, 1997, the defendant inquired whether his witnesses had been served. Ms. Davis told the court she would check the record for returns on the subpoenas. When the court asked the defendant if he had any objection to trial proceeding, since the State was going to present its case first, the defendant responded, "No. I don't have any objection to that, Your Honor."

At the end of the day, the court revisited the issue of the defendant's instanter subpoenas. After reviewing the defendant's subpoena list with the trial court's minute clerk and with Ms. Davis, the court ordered that all of the subpoenas were to be reissued for those witnesses who were not served, and that attachments were to be issued for those who had been served.

The next morning after four State witnesses had testified, the defendant advised the court that some of his witnesses still had not been served. He requested "ample time" for the subpoenas to be served and moved that the court consider issuing attachments for those witnesses who had been served, but had still not appeared. The trial court responded that the defendant would be allowed to proffer the absent witnesses' testimony at the end of the day, at which time the court would determine whether it was necessary to issue attachments for any of the witnesses. The defendant thanked the court and did not object to the court's ruling.

The next morning, June 26, 1997, the court inquired on the status of the returns. After discussion between Ms. Davis, the defendant, and the court, it was determined that

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