State v. Manuel

325 So.3d 513

STATE of Louisiana

v.Jonathan MANUEL

NO. 20-KA-172

Court of Appeal of Louisiana, Fifth Circuit.

June 02, 2021

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Thomas J. Butler, Andrea F. Long, Douglas W. Freese, Zachary P. Popovich

COUNSEL FOR DEFENDANT/APPELLANT, JONATHAN W. MANUEL A.K.A. "DUGGA", Kevin V. Boshea

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

JOHNSON, J.

Defendant/Appellant, Jonathan W. Manuel a/k/a "Dugga," appeals his convictions and sentences for second degree murder, attempted second degree murder, and possession of a firearm by a convicted felon from the 24th Judicial District Court, Division "L". For the following reasons, we vacate the conviction and sentence for count four (possession of a firearm by a convicted felon) and remand the matter to the trial court for further proceedings. We affirm Defendant's remaining convictions and sentences. We further instruct the trial court upon remand.

FACTS AND PROCEDURAL HISTORY

On April 6, 2017, a Jefferson Parish Grand Jury returned an indictment charging Defendant with second degree murder of 10-month-old Xy'Ahir Davis, in violation of La. R.S. 14:30.1 (count one), attempted second degree murder of 16-year-old M.J.¹ , in violation of La. R.S. 14:27 and La. R.S. 14:30.1² (count two), and two counts of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (counts three and four).³ On May 16, 2017, Defendant pleaded not guilty at his arraignment.

On May 27, 2017, Defendant filed omnibus motions, including motions to suppress the statement, the evidence, and the identification. On June 6, 2017, the State filed State's Answer to Motions for Discovery, State's Motion for Discovery, Demand for Notice of Alibi and/or Mental Condition Defenses, and State's Notice of Intent to Introduce Evidence of Other Offenses. On July 10, 2017, Defendant filed omnibus motions, including motions to suppress the confession and the evidence.⁴

The trial court held a hearing on October 23, 2017, regarding the motions to suppress identification, evidence, and statement. The same day, the trial court denied the motions to suppress identification and evidence. On December 6, 2017, the court denied the motion to suppress the statement.

On November 19, 2018, the State filed an Article 404(B) Notice. On November 21, 2018, Defendant filed a Motion for Supplemental Discovery, Disclosure, Inspections and Brady Material.

Defendant filed a Motion to Quash Indictment on the Grounds of Misjoinder of Offenses and a memorandum in support of that motion on March 18, 2019. Defendant filed a Second Motion for Supplemental Discovery, Disclosure, Inspections and Brady Material on the same date. On March 26, 2019, Defendant filed a "Motion to Declare Article 782(A) Unconstitutional Because It Allows for a Non-Unanimous Verdict in This Non-Capital Felony Trial." On September 13, 2019, Defendant filed a motion in limine in which he asked the trial court to prohibit the introduction of any evidence of, or any reference to, Defendant's incarceration prior to the December 3, 2016 murder and attempted murder.

On September 16, 2019, the trial court held a hearing on Defendant's motion regarding a non-unanimous verdict and denied the motion. On the same day, the trial court also granted the State's 404(B) Notice, denied Defendant's motion in limine , and denied Defendant's motion to quash.

The State filed an Article 768 Notice on September 17, 2019, regarding the expected testimony of several witnesses. A jury was selected on the same date. However, on September 18, 2019, the trial court released the jurors from jury service.

On November 4, 2019, the State filed a Notice of Intent to Call Expert Witness – Solomon Burke and a Motion to Compel Testimony. Also on November 4, 2019, jury selection occurred. On November 5, 2019, the State filed a motion for special jury instructions and an incorporated memorandum in support. On the following day, Defendant made an oral motion for mistrial, which the court denied.

The trial commenced on November 7, 2019. At trial, Detective Paul Dimitri, then with the Third District Patrol night watch of the Jefferson Parish Sheriff's Office (JPSO), testified that on November 29, 2016, he responded to a call near 4th Avenue in the Walker Town neighborhood in Marrero.⁵ He stated that upon arriving at the scene, he located a car that had bullet holes in the driver-side door and the front windshield. He stated that no one was in the car when he arrived, but he was approached by several people—two females and two males—that he later learned were inside of the vehicle at the time of the shooting. He said that the female victim who first approached him was shot. Detective Dimitri later learned that the males inside of the vehicle were Defendant and Alvin Hayes. He testified that the car belonged to Latoya Wilson, whom he said Defendant identified as his cousin. Detective Dimitri testified that Defendant was at the scene, and after a few minutes, all of the victims no longer wanted to cooperate.

Sergeant Thomas Gai, assigned to the Criminal Investigations Bureau and Homicide in the Homicide Section, testified that he acted as scene investigator for a homicide at 2188 Caddy Drive shortly after 4:30 p.m. on December 3, 2016. As such, he indicated that he was responsible for ensuring that all relevant evidence was collected and for directing the crime scene technicians. He stated that he, along with other detectives and crime scene technicians, responded to the scene.

Sergeant Gai testified as to numerous photographs taken from the crime scene including depictions of various ballistic material and clothing seized at the scene. Sergeant Gai indicated that the photographs were taken less than 30 minutes after the shooting occurred. He stated that two people were shot, Xy'Ahir Davis,⁶ who was 10 months old, and 16-year-old, M.J. Sergeant Gai testified that prior to photographing the scene, Xy'Ahir was transported to the closest hospital where he ultimately died. He stated that technician Ryan Singleton went to the hospital to take photographs and collect evidence.⁷ Sergeant Gai testified that M.J. was photographed at the scene before being transported to another hospital. He indicated that M.J. sustained eleven different wounds.

Sergeant Gai further testified as to the crime scene photographs. He indicated that there were two .380 caliber casings and six 9 mm casings at the scene. He also identified, in photographs, damage to a door that could indicate "some type of forced entry." He stated that other photographs show blood on the floor and clothing cut off of M.J. "by EMT." Sergeant Gai testified that four fingerprints were obtained from the interior of the front door frame. These fingerprints were later examined by a latent prints expert but only two were deemed viable. He stated that the location and concentration of the prints indicated to him that "an individual had grabbed the door to either pull himself in or to stop himself from falling." Sergeant Gai testified as to a "small defect" in a sofa that was determined to be a ballistic strike mark, and they ultimately obtained a projectile from the sofa. He identified numerous other ballistic materials, such as fragments and spent cartridge casings, which were photographed inside of the home.

Sergeant Gai testified that the ballistic material as captured by the crime scene photographs indicated that two shooters were firing indiscriminately in multiple directions within the living room. He further stated that based on the scene investigation, the two shooters started shooting while outside of the residence and then continued shooting inside. He noted that on the walls there were several strike marks which are visible in the photographs. Sergeant Gai stated that the entire house was searched. He said an SKS style 762 by 39 rifle was found under a bed, and an ammunition box, pills, a small amount of marijuana, and a scale were also located.⁸ He stated that the recovery of these items collectively indicated someone in the home may have been packaging and selling narcotics.

Sergeant Gai testified that based on the six 9 mm casings and the two .380 caliber casings, he determined while at the scene that there were at least two shooters. He stated that five of the 9 mm casings were found inside the home, and one was found outside. He further testified that one .380 caliber casing was found outside of the home, while the other was located inside.

Additionally, Sergeant Gai testified as to a search of Defendant's home and his arrest on December 13. He stated that a search and seizure warrant for Defendant's home was obtained that day. He indicated that plain-clothed officers surveilled the home prior to the search and observed a vehicle leaving the area. He testified that he and other detectives stopped the vehicle at a daiquiri shop on Lapalco. Sergeant Gai stated that Defendant was in the back seat of the car and was arrested pursuant to an arrest warrant for murder and obstruction of justice. There were four people in the vehicle, including Defendant's sister in the front passenger seat. He indicated that the driver consented to a search of her vehicle, and a loaded .40 caliber semiautomatic firearm was located between the center console and the passenger seat. Sergeant Gai testified that at the time, they did not believe the seized weapon was used in the homicide but submitted it to the laboratory for testing. He further stated that based on "testimonial evidence from the scene" and information from Defendant's sister, he established a "chain of custody" that placed the firearm in Defendant's possession.

Sergeant Gai testified that Defendant, Defendant's sister, and the owner of the vehicle (Shanika Meyers), were each interviewed. At the time of his arrest, Defendant was in possession of a phone, which was taken into evidence. A...