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APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 505-697, SECTION " L" Honorable Franz Zibilich, Judge.
LEON A. CANNIZZARO, JR., District Attorney, KYLE DALY, Assistant District Attorney, PARISH OF ORLEANS, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
J. THOMAS BEASLEY, Attorney at Law, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins).
Sandra Cabrina Jenkins,
[2014-0341 La.App. 4 Cir. 1] Defendant, Stanley Berniard, was charged bye grand jury indictment with the second degree murder of Alvin Crosby on August 15, 2010. Following a three day jury trial, the jury found defendant guilty as charged. Defendant now appeals his conviction for second degree murder, raising seven assignments of error. Upon our review of the record in light of the applicable law, we find no merit in defendant's assignments of error and we affirm.
STATEMENT OF THE CASE
On May 5, 2011, the grand jury indicted defendant for the second degree murder of Alvin Crosby. Defendant appeared for arraignment on May 20, 2011, and pled not guilty. Trial commenced on October 22, 2013. Following a three day jury trial, defendant was found guilty as charged of second degree murder. Defendant filed motions for post-verdict judgment of acquittal and for new trial. On October 31, 2013, the trial court denied defendant's motions and sentenced [2014-0341 La.App. 4 Cir. 2] defendant to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant's timely appeal followed.
Detective Ryan Aucoin of the New Orleans Police Department was assigned as the lead detective in the investigation of Alvin Crosby's murder. On August 15, 2010, when Det. Aucoin arrived at the crime scene, he observed the victim's car, a brown or tan colored Saturn, parked on South Roman Street. Det. Aucoin stated that he observed several bullet casings on the ground in the middle of the street and near the sidewalk next to the victim's car.
Det. Aucoin's investigation revealed the shooting occurred near LSU medical facility buildings and within one block of a nightclub, Club NV. Det. Aucoin learned from the manager of Club NV that the club was open on the night of the shooting; but there was no video surveillance from the nightclub. Canvassing the area for information and witnesses did not yield any witnesses to the shooting or witnesses willing to give information. Det. Aucoin
did learn, however, that video surveillance cameras mounted to the LSU medical facility buildings captured video footage of the shooting from two different angles.
Det. Aucoin viewed the video footage for the first time on a cellphone. On the video, Det. Aucoin observed a person wearing a white v-neck t-shirt and blue jeans walk from Perdido Street and turn onto South Roman Street; the person [2014-0341 La.App. 4 Cir. 3] walked around a black SUV parked on South Roman, pulled out a firearm from his right side waistband, and, as the victim was getting into his vehicle, the person walked up to the side of the victim's car and started firing gunshots into the side of the car; then the shooter fled on foot in the direction from which he came. Det. Aucoin testified that, even viewing the video on a cellphone screen, he recognized defendant as the shooter in the video.
Det. Aucoin noted the shooter's walk, the way he carried himself, his complexion and his haircut matched what Det. Aucoin knew of defendant. Det. Aucoin testified that, prior to this homicide investigation, he had seen photographs and videos depicting the defendant, who he also knew by the nickname " Poppy." Det. Aucoin also had observed defendant in person on several occasions and had become familiar with defendant's physical appearance, mannerisms, and the manner in which defendant walked or carried himself. Based on his prior familiarity with defendant, Det. Aucoin recognized defendant as the shooter in the video surveillance footage of the murder.
The next day, Det. Aucoin obtained a CD copy of the video surveillance footage from the LSU medical facility and he watched the same video footage on a 21-inch computer screen which provided a larger, clearer video image than he had previously viewed. Det. Aucoin confirmed his initial observations and his recognition of defendant as the shooter. He was also able to observe that the white v-neck t-shirt worn by the shooter had black lettering on it and the shooter was wearing a large white wristwatch on his left wrist. Det. Aucoin testified that after viewing the video surveillance footage the second time he was certain that defendant was the shooter in the video. Det. Aucoin documented his identification of the shooter in his case report, but he did not immediately arrest defendant. Det. [2014-0341 La.App. 4 Cir. 4] Aucoin continued his investigation in order to corroborate his identification with further facts and evidence.
Det. Aucoin spoke with the victim's mother and two friends about the victim's whereabouts on the night of the shooting. He learned that the victim had been at Club NV for a record label party that night. Det. Aucoin acquired and reviewed over 300 photographs taken at the party at Club NV by a professional photographer.
Det. Aucoin identified three photos that depicted defendant standing with other individuals; the photos were marked with a time of 2:36 a.m. and 2:37 a.m., respectively. In one photo, Det. Aucoin observed defendant wearing a large white wrist watch on his left hand and holding a bottle of champagne.
During Det. Aucoin's testimony, a DVD containing the video surveillance footage was played for the jury. Det. Aucoin narrated parts of the video, identifying the victim walking to and entering his car, and identifying defendant as the person walking around a black Escalade SUV, approaching the victim's car, firing several shots into the side of the car, and fleeing on South Roman Street. Det. Aucoin noted the similarities of defendant's clothing seen in the video to that seen in the photographs. He specifically noted that the shooter was " a light skin black male," who appeared to be short, wearing a white t-shirt with black lettering forming a long word on top of two smaller words and another longer word at the [2014-0341 La.App. 4 Cir. 5] bottom, " which matches the Free CO BJ Bolo" that defendant wore inside Club NV that night, as seen in the photos. Det. Aucoin also stated that the video was released to the media " to try to get the publics [sic] interest in assisting and identifying the shooter." Det. Aucoin testified that he also enlisted the assistance of the ATF to determine if the clothing worn by the shooter in the video matched the clothing worn by defendant in the photographs from Club NV.
In February 2011, approximately six months after the homicide, Det. Aucoin located an eyewitness, Chaz Adams. Mr. Adams met with Det. Aucoin at the NOPD Homicide office to give a recorded statement. Det. Aucoin learned that Mr. Adams was present at Club NV the night of the shooting and he identified defendant and the victim as persons he had seen inside Club NV on August 15, 2010. Upon leaving the club, Mr. Adams witnessed the shooting and he identified " Poppy" as the shooter. At that point, Det. Aucoin showed Mr. Adams a sixperson photographic lineup, from which Mr. Adams picked out defendant as the shooter. Det. Aucoin testified that Mr. Adams was also able to describe where he was located at the time of the shooting; where the victim was located at the time of the shooting; the type of car the victim was in; where defendant was when he fired the shots. Based on the identification and statement obtained from Mr. Adams, Det. Aucoin obtained an arrest warrant for defendant.
[2014-0341 La.App. 4 Cir. 6] Chaz Adams testified that he had known defendant for at least fifteen years.
Mr. Adams confirmed that he knew defendant by the nickname " Poppy" and he made an in-court identification of defendant.
Mr. Adams testified that he attended the party at Club NV in the early morning hours of August 15, 2010, and he identified photos of himself at the club that night. Mr. Adams stated he was in the VIP section of the club, where he saw defendant get into an argument with the victim when defendant sprayed a bottle of champagne on some people in the crowd. A while later, Mr. Adams left the club and was walking in the street towards his car when he heard gunshots and he saw defendant shooting into the driver's side door of a brown Saturn. Mr. Adams initially ran away from the shooting, but he returned to his car moments later and drove away. As he drove away, he looked into the brown Saturn and saw someone slumped over in the driver's seat. A portion of the video surveillance footage was played during Mr. Adams's testimony; he identified defendant as the shooter in the video as well as his own car driving away from the scene after the shooting. Mr. Adams testified that he was certain defendant was the person he saw shooting into the brown Saturn on August 15, 2010.
Mr. Adams stated that he did not report what he saw to NOPD that day and he did not come forward as a witness until six months later, stating that he " didn't want repercussions to come on me." Approximately six months after the shooting, Mr. Adams told his friend, Kerry Johnson, that he saw defendant commit the murder outside Club NV. Ms. Johnson encouraged Mr. Adams to " do the right thing" and she connected him with Agent Jason Townsend. Mr. Adams had a brief [2014-0341 La.App. 4 Cir. 7] telephone conversation with Agent Townsend and indicated that he knew who committed the murder outside Club NV. The next day, Mr. Adams decided to go with his friend Ms. Johnson to NOPD and give a statement to Det. Aucoin. Mr. Adams testified that he was not forced, threatened, or coerced to give a statement to Det. Aucoin or to identify defendant as the person who committed the murder.
Mr. Adams confirmed that he was currently in jail pursuant to a material witness bond. He stated that he feared for his safety after defense counsel learned that he was a witness in this case; consequently, he did not mind being in jail prior to trial. Mr. Adams denied that Kerry Johnson bribed him with pain pills to identify defendant in this case.
Kerry Johnson testified that she had known defendant since childhood; they had grown up in the same neighborhood and attended the same elementary school. She stated that she had known Mr. Adams since 2007 and met him through Louis Robertson, who also was acquainted with defendant. Ms. Johnson testified that in February, 2011, she was driving with Mr. Adams in the car when she learned that he knew who committed the murder outside Club NV. She encouraged him to call Crimestoppers. She then decided to call Agent Jason Townsend, who was the lead detective in the investigation of her brother's murder, and she handed the phone to Mr. Adams for him to speak with Agent Townsend. The next day, she went to NOPD Homicide office with Mr. Adams where they met with Agent Townsend and Det. Aucoin. While in Det. Aucoin's office, Ms. Johnson viewed the video of the shooting. Based on her longtime familiarity with defendant, she recognized and identified defendant as the shooter. She confirmed on cross-examination that she did not witness the shooting in person.
[2014-0341 La.App. 4 Cir. 8] To corroborate Det. Aucoin's identification of the defendant, the State called Agent Jason Townsend, a Special Agent with the ATF, to testify as to his familiarity with the defendant. Agent Townsend identified defendant in the courtroom and stated that he first " became aware of"
defendant in December of 2009, approximately eight or nine months prior to the murder of Mr. Crosby. Prior to the murder on August 15, 2010, Agent Townsend had seen several photographs of defendant and seen him in person on several occasions. Agent Townsend testified that he was familiar with defendant's physical appearance, the way defendant carried himself, and his mannerisms. Agent Townsend was shown the video of the shooting in court; he testified that he had done enough investigation on defendant to recognize him as the shooter in the video.
Agent Townsend testified that Mr. Adams had information about the murder outside Club NV and his exact words to Agent Townsend on the phone were " I saw Poppy kill that guy." Agent Townsend knew, prior to that conversation, that defendant used the nickname " Poppy." Agent Townsend was present at the NOPD Homicide office when Mr. Adams gave his statement to Det. Aucoin. Agent Townsend stated that Det. Aucoin did not coerce Mr. Adams into making a statement or identifying defendant as the shooter; and Mr. Adams was not shown the video prior to giving his statement.
Det. Aucoin, recalled as a witness by the defense, testified that the video clearly depicted other eyewitnesses to the murder of Mr. Crosby besides Mr. [2014-0341 La.App. 4 Cir. 9] Adams. Mr. Adams was the only cooperating eyewitness and Det. Aucoin did not talk to any other eyewitnesses to this murder.
The day after his interview with Mr. Adams, Det. Aucoin arrested defendant. Det. Aucoin advised defendant that he had been arrested on a charge of second degree murder and advised defendant of his Miranda rights. Defendant agreed to give a recorded statement and portions of that recorded statement were played for the jury. Defendant indicated to Det. Aucoin that he had alibi witnesses; Det. Aucoin stated that he was only able to locate one individual named by defendant as a corroborating witness; but that individual did not corroborate defendant's statement.
Our review of the record for errors patent reveals one. The transcript of the sentencing hearing reflects that the trial court imposed defendant's sentence less than twenty-four hours after denying his motions for post-verdict judgment of acquittal and for new trial, in violation of La. C.Cr.P. art. 873. Pursuant to La. C.Cr.P. art. 873, the trial court shall not impose sentence until at least twenty-four hours after denying a motion for new trial, unless the defendant expressly waives the delay.
The transcript of the sentencing hearing does not indicate that defendant expressly waived the twenty-four hour delay as contemplated by La. C.Cr.P. art. 873. However, this Court has held that the trial court's failure to observe the required twenty-four hour delay is harmless error where the defendant does not complain of his sentence on appeal. State v. Banks, 13-1262, p. 10 (La.App. 4 Cir. 7/30/14), 146 So.3d 874, 881; State v. Duncan, 11-0563, p. 8 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 511. In addition, the trial court's failure to observe the [2014-0341 La.App. 4 Cir. 10] delay is harmless error where the sentence imposed was mandatory. Duncan, 11-0563, p. 8, 91 So.3d at 511; State v. Seals, 95-0305, p. 17 (La. 11/25/96), 684 So.2d 368, 380. Here, the trial court sentenced defendant to life
imprisonment without parole, probation, or suspension of sentence, as mandated by La. R.S. 14:30.1, and defendant does not complain of his sentence on appeal. ...