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ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 11-1048, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, MATTHEW CAPLAN, DOUGLAS W. FREESE, VINCENT J. PACIERA, JR., ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
MARGARET S. SOLLARS, ATTORNEY AT LAW, Louisiana Appellate Project, Thibodaux, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst.
MARC E. JOHNSON, J.
[14-253 La.App. 5 Cir. 2] Defendant, Quentin McClure, appeals his convictions and sentences for second degree murder, possession of a firearm by a convicted felon, attempted possession of a firearm by a convicted felon, intimidation of a witness, and conspiracy to commit obstruction of justice, raising several issues including sufficiency of the evidence, denial of his challenges for cause during jury selection, admissibility of an officer's testimony on expert matters, and admissibility of hearsay testimony of a deceased witness. For the reasons that follow, we affirm Defendant's convictions and sentences, except his sentence for attempted possession of a firearm by a convicted felon which we vacate and remand for resentencing.
Defendant McClure, along with his co-defendants Chasity Griffin and Jeffrey Nelson, were charged in an eight-count indictment on February 2, 2012 [14-253 La.App. 5 Cir. 3] with various crimes relating to the murders of Theodore Pierce and eyewitness Charles Smith. McClure was charged with the January 2, 2011 second degree murder of Pierce, in violation of La. R.S. 14:30.1 (count one); two counts of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (counts three and four); intimidation of a witness, in violation of La. R.S. 14:129.1 (count seven); and conspiracy to commit obstruction of justice, in violation of La. R.S. 14:26 and 14:130.1(A)(2) and/or (A)(3) (count eight). Defendant pled not guilty and filed several pre-trial
motions, including motions to suppress evidence, identification and statements, which were denied after a hearing.
Defendant, and his two co-defendants, proceeded to trial on August 5, 2013 before a twelve-person jury. After an eight-day trial, the jury returned a verdict of guilty as charged against Defendant on all counts, except for count four, which the jury found Defendant guilty of the responsive verdict of attempted possession of a firearm by a convicted felon. The trial court subsequently sentenced Defendant to concurrent sentences of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on count one (second degree murder); 20 years at hard labor without benefit of probation, parole, or suspension of sentence on count three (felon in possession of a firearm); 10 years at hard labor without benefit of probation, parole, or suspension of sentence on count four (attempted felon in possession of a firearm); 20 years at hard labor on count seven (intimidation of a witness); and 30 years at hard labor on count eight (conspiracy to commit obstruction of justice).
[14-253 La.App. 5 Cir. 4] FACTS
In summary, Theodore Pierce was murdered outside of a friend's house in Bridge City on January 2, 2011. Defendant and co-defendant Griffin were arrested shortly thereafter and charged with his murder. Pierce's murder was witnessed by Charles Smith, a neighbor. On August 17, 2011, Smith was found shot to death in front of his home located at 231 Fourth Street in Bridge City. It was alleged that Defendant and Griffin conspired with co-defendant Nelson, who is Defendant's younger brother, to murder Smith.
The Murder of Theodore Pierce
At approximately 4:41 p.m. on January 2, 2011, Detective Travis Eserman with the Jefferson Parish Sheriff's Office (JPSO) responded to the scene of a homicide located at 235 Fourth St. in Bridge City involving a victim by the name of Theodore Pierce. Upon his arrival, Det. Eserman observed Pierce's body in the driveway on the passenger side of a pickup truck. Pierce died on the scene. An autopsy revealed that Pierce died of multiple gunshot wounds to his face, neck and back. Fifteen spent casings were recovered at the scene. Two experts in firearm and toolmark examination, Jene Rauch and Colonel Timothy Scanlan, analyzed the ballistics material recovered from the scene and opined four guns -- two .40 caliber pistols and two 9 mm pistols -- were used at the scene. Colonel Scanlan, who was also qualified as an expert in crime scene reconstruction, opined there were four shooters shooting at one person from separate locations. The murder weapons were never recovered.
During the investigation, police received an anonymous tip identifying four people, including Defendant and Griffin, as being involved in the shooting. While canvassing the neighborhood for witnesses, police interviewed Charles Smith who [14-253 La.App. 5 Cir. 5] lived next door to the murder scene. Smith stated that he witnessed the shooting of Pierce, whom he described as a childhood friend, and subsequently identified Defendant and Griffin in photographic lineups as two of
the individuals involved in the shooting.  In a taped statement, Smith explained that he witnessed Defendant and Griffin, who he occasionally saw walking around the neighborhood, shoot at Pierce while they were standing in front of a neighbor's house located at 301 Fourth St. Smith stated that the duo were initially standing in the street and then made their way into the yard while they shot at Pierce. He then observed Defendant approach Pierce and " finish him off." Smith further stated that he saw a second male on the scene at the time of the shooting but did not see his face or notice whether he had a gun. Smith confirmed that Pierce did not have a gun and was not shooting back at Defendant or Griffin.
Smith also told police during his statement that the day after the shooting, Defendant drove to his house armed with a gun and confronted him stating, " I heard you talking about, about the, the shooting," to which Smith responded that he had not been talking about anything. Smith stated that he believed his life was in danger because he had witnessed the murder.
After Smith's statement and identifications, arrest warrants were prepared for Defendant and Griffin. Defendant was subsequently arrested a few blocks from the shooting at his residence located at 313 Lafitte St. A .38 caliber revolver was seized from his residence; however, testing revealed that it was not used in connection with Pierce's murder. After his arrest and after being advised of his Miranda  rights, Defendant gave a taped statement to police explaining that he was [14-253 La.App. 5 Cir. 6] home watching the Saints football game on the day of the murder. He stated that after the football game, around 3:00 or 4:00 p.m., he went to his girlfriend, Jocelyn Scott's, house in Kenner. When asked why someone would want to implicate him in Pierce's murder, Defendant stated that his friend, Reginald Lewis, had been murdered in the same neighborhood in July 2010, and that it was suspected that Pierce killed Lewis.
Several days later, Griffin was arrested at her sister's home in St. Rose. She likewise provided a taped statement to police after her arrest and after being advised of her rights. In her statement, Griffin stated she had been with an acquaintance named " Christy" in Algiers at the time of the murder. She indicated that she had met Christy the night before the murder at a nightclub, had entered Christy's phone number into her phone, and had exchanged text messages with Christy on the day of the murder. However, there was no phone number for or text messages to or from Christy found on
Griffin's phone, and police were unable to confirm Christy's existence.
Records for Defendant's and Griffin's cell phones showed that they were both in the area of Pierce's murder at the time he was shot and they left the area minutes after his murder. The cell phone records further indicated that Defendant and Griffin exchanged phone calls in the minutes leading up to Pierce's murder and then again four or five hours after the murder.
[14-253 La.App. 5 Cir. 7] At trial, Defendant presented testimony from his sister, Lekisha Nelson, and Nelson's girlfriend, Oraneisha Brown, who stated that Defendant was home with them at 313 Lafitte St. watching the Saints game at the time Pierce was killed. Both testified that they learned of Pierce's murder when Nelson's cousin came to the house around 4:30 p.m. and told them someone had been killed, and that Defendant was among the people who had gathered outside in front of their house.
Griffin testified in her defense and testified that she was with a female acquaintance at the time of Pierce's murder. Griffin explained that she had given her cell phone to her brother prior to going to the acquaintance's house. She stated that upon news of Pierce's death, the female acquaintance dropped her off in Bridge City. Griffin explained that her brother, who had her cell phone, went to St. Rose immediately after the killing. She denied any involvement in Pierce's murder.
The Murder of Charles Smith
At approximately noon on August 17, 2011, the day before a scheduled motion hearing to determine the admissibility of the photographic identifications made by Smith of Defendant and Griffin as the shooters in Pierce's murder, Charles Smith, the lone eyewitness, was murdered in front of his home. Eight casings were found at the scene and Ms. Rauch, the firearm and tool mark examiner expert, opined that only one gun was used in the shooting. An autopsy revealed Smith died of multiple gunshot wounds to his head, chest and leg. The murder weapon was never recovered.
Colonel Scanlan testified that the evidence was consistent with a " targeted action," meaning one mobile shooter started shooting from the rear of the residence [14-253 La.App. 5 Cir. 8] in a place of cover and then moved forward down the fence line. He opined the evidence was consistent with someone who was waiting to attack Smith when he came out of his home.
Defendant's brother, Jeffery Nelson, was subsequently arrested and charged with Smith's murder.
Evidence of a Conspiracy
During his investigation of Smith's murder, Detective Matthew Vasquez with the JPSO listened to " hundreds of hours" of jailhouse phone calls made by Defendant and Griffin from the Jefferson Parish Correctional Center (JPCC) both before and
after Smith's murder. Det. Vasquez explained that while neither Defendant, Griffin nor Nelson admitted killing Smith in any of these phone calls, he identified several phone calls that he deemed significant. He had those calls transcribed and excerpts were played for the jury, beginning with a phone call on January 6, 2011, a few days after Pierce's murder. During the playing of these phone calls for the jury, Det. Vasquez offered testimony as to who was talking and the meaning of the " code" language being used.
In the January 6, 2011 phone call from Defendant to an unknown male, Defendant stated that he's " good" as " [l]ong as the n*gg* don't say nothing." On the next day, Defendant assured his mother that everything was alright " long as nobody don't say nothing." In a call to his brother, Frank, two days later, Defendant indicated that the police claimed they had one witness and " n*gg* already know who the witness is."
On January 25, 2011, Defendant and an unknown female facilitated a three-way call with Nelson during which Defendant stated, " I ain't trippin' . . . They don't got no witness . . . Well, they got one witness, but . . . he ain't coming to [14-253 La.App. 5 Cir. 9] court or whatever, woo di woo." Two days later, Nelson asked Defendant how he got caught to which Defendant responded, " I was acting stupid . . . I was acting dumb as a mother-f**ker son . . . I was on the wrong level son." 
Four days later, on January 29, 2011, Defendant had another three-way call with his friend, Willis Stevenson, and Nelson. During the call, Stevenson told Defendant that Griffin had not been to court and that Griffin's attorney said she would be going home in 120 days because the State did not have any evidence. Defendant responded, " Right, yeah cause my lawyer was like 'uh you know they got one witness but uh your little brother is on that.' When he told me that, I already know what it was ( laughing ), ya heard me?" Stevenson then told Defendant about a conversation Griffin's father, Terrence Daniels, had with Smith. Specifically, Stevenson said, " T went over there today, cause he was with Scooby ya know what I'm saying. So boy Scooby brought him, n*gg* was at the Fishhook. Ya know what I'm saying, he brought him to the Fishhook, I guess that where he felt comfortable at or whatever." Later at trial, Smith's girlfriend, Margie McKeel, testified about an incident where Smith had told her that Griffin's father had threatened his life, telling Smith that " he better not testify or else there's going to be gunplay."
A few months later, on June 2, 2011, Griffin called an unknown female and told her that her attorney was going to set Griffin's next court date for June 23, 2011 but that Griffin told her attorney the date was " too early." Griffin explained that they needed to get their discovery packets. She stated that Defendant " was hollering about . . . other lil dude whose name starts
with a C, ya heard me. You [14-253 La.App. 5 Cir. 10] know who I'm talking about . . . . I think it's Troy's brother, lives on Fourth Street. I ain't gonna say his name."  Later on the same day, Griffin made a call to an unknown male and told him that " they only got one witness," who she identified as " Charles[,] Troy's brother." She further stated that his statement did not add up and that " he really didn't like see nothing."
Two days later on June 4, 2011, Griffin spoke to a man named Louis Wells and told him to contact Smith's girlfriend, McKeel, to see what was " happening with Dude" who was " speaking on me and Q-sie [Defendant]." Wells responded that he heard McKeel was staying in Algiers and that he had not seen her " back here." Wells then handed the phone to Griffin's brother. Griffin told her brother, " I need that boy, ya heard me?"
During another conversation between Griffin and her brother on June 8, 2011, her brother stated, " heard we pulling something off" and that " Lil Jeff [Nelson]" is " all in." Griffin later told her brother to acquire a " b*tch," which was interpreted by Det. Vasquez to be slang for an untraceable firearm. She then stated, " if you go f**k with Dude or whatever -- whatever man, you could do your own thing or whatever. You could take everything from there, ya heard me?" to which her brother responded, " [s]h*t gonna be lovely when you come home, son."
The next day on June 9, 2011, Defendant spoke to Nelson. When Nelson asked Defendant whether " Dude" was going to testify, Defendant responded " [n]ine out of ten, he ain't going to f*ck with that." He further informed Nelson [14-253 La.App. 5 Cir. 11] that Griffin told him that they did not know where " Dude" was ...