State v. West

1

STATE OF LOUISIANA v. GERALD WEST

No. 2022-KA-0721

Court of Appeals of Louisiana, Fourth Circuit

July 5, 2023

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 542-527 SECTION "E" Judge Rhonda Goode-Douglas

Jason R. Williams District Attorney, Brad Scott Assistant District Attorney, Chief of Appeals Thomas Frederick Assistant District Attorney COUNSEL FOR STATE OF LOUISIANA

Meghan Harwell Bitoun LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart Judge Karen K. Herman)

Karen K. Herman Judge

Defendant Gerald West ("Defendant"), appeals his convictions for manslaughter, armed robbery, and obstruction of justice and the related sentences. For the reasons that follow, we affirm Defendant's convictions and sentences.

PROCEDURAL HISTORY

On August 24, 2018, the State filed a bill of indictment charging Defendant and co-defendant, Leander Lafrance ("Lafrance"), with one count of second degree murder of Marion Huston; one count of armed robbery with a firearm; and one count of obstruction of justice, violations of La. R.S. 14:30.1, 14:64.3, and 14:130.1, respectively.

Defendant appeared for arraignment on September 14, 2018, and entered pleas of not guilty. The cases were severed on February 1 2019 and on November 18, 2021, co-defendant Lafrance pled guilty to the charge of obstruction of justice, and pled guilty to an additional charge of accessory after the fact, a violation of La. R.S. 14:25.

On March 21, 2022, the State filed notice of its intent to introduce other crimes evidence, to which Defendant filed an opposition on March 31, 2022.

The matter proceeded to jury trial and on April 8, 2022, the jury returned a unanimous verdict, finding defendant guilty of the responsive verdicts of manslaughter and armed robbery, and guilty as charged of obstruction of justice.

On August 16, 2022, the trial court imposed sentences of forty years imprisonment at hard labor on the manslaughter count; forty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, on the armed robbery count; and a concurrent sentence of twenty years imprisonment at hard labor on the count of obstruction of justice. This appeal follows.

FACTUAL BACKGROUND

The following witnesses testified on behalf of the State: New Orleans Police Department ("NOPD") Sergeant James Kish, an officer who was dispatched to the crime scene; NOPD crime analyst Officer Charles Dionne; NOPD Crime Lab Technician Kianna Gordan, who processed the victim's vehicle; NOPD Crime Lab Forensic Firearm Examiner Sean McElrath; Maylynn Glapion, who witnessed the aftermath of the shooting; Orleans Parish Coroner's Office Chief Forensic Pathologist, Doctor Samantha Huber, who conducted the victim's autopsy; Officer Donald Blackwell, one of the first officers to arrive to the crime scene; NOPD Homicide Detective Michael Poluikis, who ultimately led the homicide investigation; NOPD Detective William Torres, an officer who responded to an aggravated assault report involving Defendant in August of 2018; Lafrance, the prior co-defendant who was present during the shooting, and Nichelle Nixon, the victim's girlfriend. No witnesses were called by the defense.

At the start of trial, prior to the presentation of witness testimony, the State played a series of 911 calls in open court. The defense stipulated to the recordings' authenticity as NOPD records kept in the ordinary course of business. The callers reported that a black male had been shot but was still alive, and was lying partially outside of a white vehicle located in the rear of an apartment complex on Bundy Road, and that the shooter(s) had fled in another vehicle.^[1] The record reveals that the shooting occurred outside the Lakewind East Apartments.

The State also played footage from the body-worn camera of NOPD Officer Glenn Miller ("Off. Miller"), the authenticity of which the defense also stipulated to as records kept in the ordinary course of business. The video footage depicts Off. Miller's arrival at the scene and his administration of first aid to the victim, Marion Hutson.^[2] Off. Miller identified several gunshot wounds, one to the base of the victim's skull, which had exited above his eyelid, one to his upper chest, one to his lower abdomen, and another to his right arm. Officer Miller wrapped the wounds with gauze and bandages, and attempted to keep the victim conscious until EMS arrived. He also identified several forty-five caliber casings and slugs located in the driver's side of the vehicle. The victim could not identify the shooter(s), and stated that he did not know what had happened.

Sergeant James Kish ("Sgt. Kish") testified that he was dispatched to an apartment complex on 5131 Bundy Road in New Orleans East to investigate a shooting on February 3, 2018. He described the location of the apartment complex as somewhat "rural," with only sporadic residential housing nearby, and "an overgrown lot next to it." Sgt. Kish stated that when he arrived at the scene, several other officers were already present, including Off. Miller who wrapped the victim's wounds with bandages. EMS had placed the victim on a gurney to transport him to the hospital.

The State introduced photographs of the crime scene in globo, and Sgt. Kish described each photograph as it was published to the jury. The photographs depicted the victim's vehicle from several angles, and a stream of blood leading from the driver's seat through the parking lot. Sgt. Kish pointed out a bullet hole in the driver's side door, and two bullets discovered on the ground nearby. Sgt. Kish explained that the bullets depicted in the photos were "in good condition," because they were not deformed, and they contained visible "rifling," which could potentially be used to match the bullet to a specific firearm on file in the ATF database. Sgt. Kish testified that he did not locate any surveillance video footage of the crime scene, and that the case was transferred to the homicide division later that day for further investigation.

NOPD crime analyst Officer Charles Dionne ("Off. Dionne") testified that he took several training courses on the use of GeoTime software in 2019 and 2020, which is utilized to "help [the police department] visualize cell phone records," and became a "certified GeoTime analyst" in February of 2021.^[3] The trial court found Off. Dionne qualified as an expert in cellular GeoTime analysis over Defendant's objection,^[4] and the State introduced Officer Dionne's digital report (in a Power Point Presentation), which he explained to the jury.

Off. Dionne testified that he input the location data from the cell phones belonging to defendant and Lafrance before, during, and after the shooting, as well as the time and location of the shooting, and the GeoTime software created visual timelines and maps depicting the locations of the cell phones in reference to the time and location of the shooting. According to Off. Dionne's report, Defendant's cell phone "was in the Metairie area between [1:30 pm and 1:45 pm] before moving to New Orleans at approximately 2:30 pm. The phone connected to cell sites in New Orleans East until approximately 4:00 before returning to the Metairie area." Similarly, Lafrance's phone was also in the same Metairie area as Defendant between 1:30 and 1:45 pm "before moving toward New Orleans East. The phone connected to cell sites in New Orleans East from 2:40 until approximately 3:48 pm when the phone appears to get turned off." At the time of the shooting, both phones were connected to cell towers within blocks of the crime scene, although they were not connected to the same tower. Off. Dionne accounted for the discrepancy by explaining that Defendant and Lafrance used different cell phone carriers, and because different carriers "have antennas at different locations, [] two phones from two different carriers could be in the same geographical area but connect to different cell sites." He confirmed that he had "spot-checked" the data and "no outliers" were discovered.^[5]

On cross-examination, Off. Dionne confirmed that his data only provided the location of the cell tower each phone connected to during specific times, and which direction the phone was heading while it was connected. Off. Dionne conceded that his data did not indicate the identification of the person(s) in possession of the phones, and that he had not determined whether any cell towers in the area to which either phone may have alternatively connected were inoperable at the time. He also agreed that, although the cell phones appear in the visual representations to be "right next to each other," the cell sites they were each connected to "were within a mile."

NOPD Crime Lab Technician Kiana Gordon ("Gordon") testified that she processed the evidence located in the vehicle in the evidence cage at NOPD headquarters, and authenticated the photographs she had taken of the vehicle. The State introduced the photographs of the vehicle in globo, and Gordon described each photograph as it was published to the jury. She stated that the photograph depicted the bullet hole in the driver's side door and four spent casings, of which two were forty-five caliber, and two were nine millimeter. Two empty plastic bottles, and a box of Winchester ammunition were also discovered inside the vehicle. Gordon also identified two separate bullet holes in the interior of the vehicle in the driver's door.

On cross-examination, Gordon testified that she had not been asked to test the spent casings for either fingerprints or DNA, and she stated that the box of Winchester ammunition did not match the spent casings discovered inside the...