State v. Washington

325 So.3d 1098

STATE of Louisiana

v.Dwight WASHINGTON

NO. 2021-KA-0061

Court of Appeal of Louisiana, Fourth Circuit.

AUGUST 4, 2021

JASON R. WILLIAMS, DISTRICT ATTORNEY, ORLEANS PARISH, G. BEN COHEN, CHIEF OF APPEALS, ADELE M. KRIEGER, ASSISTANT DISTRICT ATTORNEY, 619 S. White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE

SHERRY WATTERS, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, Louisiana 70158, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard )

STATEMENT OF CASE

On July 19, 2018, an Orleans Parish Grand Jury returned an indictment charging the defendant, Dwight Washington, as follows: count one-second degree murder of Darrell Pollard; count two-second degree murder of Terran Young; count three-attempt to commit second degree murder of Jahon White; count fourattempt to commit second degree murder of Bruce Pollard; count five-obstruction of justice in connection with the second degree murder investigation. On July 25, 2018, the defendant was arraigned and entered pleas of not guilty.

Trial commenced on February 10, 2020, with voir dire proceedings and continued through to February 13, 2020. On February 13, 2020, the jury rendered its verdicts, finding the defendant guilty as charged on all counts. Thereafter, the polling slips were reviewed and the court confirmed that the guilty verdicts were rendered by virtue of eleven guilty votes and one not guilty vote.

On March 5, 2020, the date the defendant was set to be sentenced, the defendant filed a motion for a new trial, arguing, inter alia, that he was entitled to a new trial by virtue of the non-unanimous verdicts. On that same date, the court denied defendant's motion. Thereafter, the court proceeded to sentence defendant as follows:

In count 1 for the second degree murder of Darrell Pollard ... the [c]ourt imposes the mandatory penalty that you must serve the remainder of your natural life in the Department of Corrections, that sentence being without benefit of probation, parole, or suspension of sentence. On count 2, for the indicted charge of second degree murder of Terran Young ... the [c]ourt imposes the mandatory sentence, sentencing you to serve the remainder of your natural life in the Department of Corrections without benefit of probation, parole, or suspension of sentence. On count 3 for the indicted charge of attempted second degree murder of Johan White ... the [c]ourt sentences you to the maximum of 50 years in the Department of Corrections. That sentence is without benefit of probation, parole, or suspension of sentence. On count 4 for the indicted charge of attempted second degree murder of Bruce Pollard ... 50 years, Department of Corrections. That sentence is without benefit of probation, parole, or suspension of sentence....On count 5, [the obstruction of justice,] the [c]ourt sentences you to 40 years, Department of Corrections. That sentence is at hard labor. Counts 1, 2, 3, 4 and 5, are to run concurrent with each other [with] credit for all time served from date of arrest.

Following sentencing, the defendant noted his objection to said sentences. Additionally, the defendant filed a motion for appeal and designation of the record on March 5, 2020, which the court granted.

STATEMENT OF FACT

Sergeant Mark McCourt ("McCourt") stated that he was employed by the New Orleans Police Department as custodian of records for 911 calls. McCourt testified with regard to numerous 911 calls received on June 15, 2017, commencing at 11:11 p.m. The calls were played for the jury and McCourt confirmed that one of the callers described a body being found at the scene of the shooting. On cross-examination, McCourt informed that none of the 911 callers identified the defendant as the shooter and none speculated that the shooting could have been attributable to a "rap war."

Shavine Young, the mother of one of the murder victims, testified that she was asleep at home when notified that her nineteen-year-old son, Terran Young, had been killed. She stated that Terran was the second of her six children and that she had done her best to help her other children cope with the ordeal associated with Terran's murder. Shelia Dorsey testified that she had raised Darrell Pollard, the other murder victim of the June 15, 2017 shooting, since he was two weeks old.

Detective David DeSalvo ("DeSalvo") testified that on June 15, 2017, he was employed in the "Gang Unit" of the New Orleans Police Department. On that date, he was called at approximately 11:00 p.m. to investigate a shooting at the intersection of Carrollton Avenue and Earhart Boulevard. DeSalvo stated that he was one of the first officers to arrive at the scene and he witnessed a body lying on Carrollton Avenue. Approximately fifteen minutes after he had been on the scene, another incident was reported, a vehicle, found near University Hospital, was riddled with bullet holes and a body was inside the vehicle.

On cross-examination, DeSalvo stated that the victim found on Carrollton Avenue was not responsive and could not identify who shot him. At the scene where the bullet-riddled vehicle was recovered, the victim inside the vehicle was dead and, as such, could not identify who had shot him.

Detective Theophilus Kent ("Kent") testified that on June 15, 2017, he was employed in the New Orleans Police Department's Homicide Division. On that date, he reported to the area where the bullet-riddled car was located and found an unresponsive male lying in the back seat. Kent testified that as a result of his investigation he began to suspect that the shooting was associated with an ongoing feud between two gangs, the "Ghost Gang" and the "Byrd Gang." Further, pursuant to his investigation, it was discovered that a second vehicle was involved; a "totally burned out vehicle" was discovered. It was Kent's belief that this second vehicle was used by the assailants and that it was intentionally set on fire. Kent testified that both victims, Terran Young and Darrell Pollard, were members of the Byrd Gang.

Bruce Pollard ("Bruce") testified that he did not want to be in the courtroom to offer testimony; admitting that he was currently serving a fifteen-year sentence. Bruce admitted that one of the victims, Darrell Pollard ("Darrell"), was his cousin and that he "grew up" with the other murder victim, Terran Young. Bruce also grew up with Johan White, another shooting victim who was not murdered. Bruce stated that before his incarceration he was a "rapper." Bruce admitted that he wrote a song, "Untouchable," with a gentleman named "Tokey Hefner." Bruce also sang a song entitled, "Cuttin Up." Bruce concluded his testimony by stating that he did not see who "shot up" the car in which he was traveling on June 15, 2017.

Detective Leonard Bendy ("Bendy") testified that he was employed in the Homicide Division of the New Orleans Police Department and was the lead investigator with respect to the double homicide of Darrell Pollard and Terran Young. Even prior to the June 15, 2017 shooting incident, Bendy was involved in the investigations of a series of homicides associated with an "ongoing gang war" between the Ghost Gang and the Byrd Gang. One such homicide, the death of a Ghost Gang member, occurred on January 31, 2017. The date of this particular homicide was tattooed on the right-side of defendant's face.

Bendy recalled receiving a call at approximately 11:20 p.m. regarding the homicide, which occurred at Carrollton Avenue and Earhart Boulevard. Bendy went to the crime scene where he found numerous shell casings, "[a] 9-millimeter and ... one .40-caliber." A firearm was also found at the scene, a "Glock 27 pistol."

There were no eyewitnesses to the shooting; however, Bendy was advised that there was a "secondary scene," believed to be associated with the Carrollton/Earhart shooting, located at the 200 block of North Johnson Street, near the University Medical Center. A black Honda Civic was located in the 200 block of North Johnson Street and Darrell Pollard, who was deceased, was located in the rear of the vehicle with multiple gunshot wounds. Also discovered in the vehicle was a ".40-caliber spent cartridge casing."

Bendy testified that police were able to identify the two murder victims relatively quickly. A third shooting victim, Johan White, was located in University Hospital, suffering from bullet wounds to his hand. The fourth victim, Bruce Pollard, was not in the hospital.

A video surveillance camera reflected what happened at the intersection of Carrollton Avenue and Earhart Boulevard. The video showed a gold Honda Accord pull alongside the black Honda Civic and commenced firing numerous bullets into the Civic. Thereafter, the video showed Terran Young falling out of the Civic after being struck by gunfire.

With the assistance of video surveillance cameras, Bendy was able to track the gold Accord after the shooting, tracking it as it traveled on Earhart Boulevard in a downtown direction. Once the vehicle stopped near the Calliope housing development, a camera showed an individual, "matching the physical description of [defendant]," exit the driver's seat of the vehicle with an assault rifle. The individual fitting the defendant's description was wearing a sleeveless white undershirt, jeans and what appeared to be Timberland boots. On his head was what appeared to be "a type of headdress." The license plate on the vehicle was XQL828.

Though an individual fitting the defendant's description was depicted on a video surveillance camera exiting the gold Accord with an assault rifle, the defendant was not arrested at that point. Instead, Bendy obtained search warrants for social media of certain individuals. Bendy explained that sometimes information related to shooting events are placed in songs. During the investigation, Bendy focused on a song, "Untouchable," by Bruce Pollard. In the song, Bendy heard multiple references to June 15,...