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State v. Bernard

Court of Appeals of Louisiana, Fourth Circuit

June 3, 2015

STATE OF LOUISIANA
v.
FELTON R. BERNARD

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APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 469-092, SECTION " H" . Honorable Camille Buras, Judge.

Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.

Sherry Watters, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet).

OPINION

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[2014-0580 La.App. 4 Cir. 1] Terri F. Love, J.

Felton Bernard (" Defendant" ) appeals his conviction and sentence for four counts of first degree murder in violation of La. R.S. 14:30. The Defendant assigns as errors that (1) the evidence is insufficient to prove he murdered Lionell and Leon Miskell; (2) the State failed to establish the scientific basis for the firearms evidence presented at trial, and consequently, the evidence is insufficient to connect him to the murders of Diane Miskell and John Robinson; (3) the non-unanimous jury verdicts are unconstitutional; and (4) the sentences are excessive. We find the corroboration of witness testimony and evidence presented at trial sufficiently proved the

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Defendant killed Lionell and Leon Miskell. The State properly established, through expert testimony, the scientific basis for the firearms evidence admitted at trial, on which the jury could sufficiently rely to connect the Defendant to the murders of Diane Miskell and John Robinson. Additionally, Louisiana jurisprudence demonstrates that the Sixth Amendment does not require unanimous jury verdicts in state criminal trials. Nor does our jurisprudence suggest that the trial court ordering the Defendant to serve his sentences consecutively is [2014-0580 La.App. 4 Cir. 2] unconstitutionally excessive. Therefore, we affirm the Defendant's convictions and sentences.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The events that transpired on November 4, 2006 in this case evolved from a dispute over the ownership of property located at 4635 Camelia Street in East New Orleans. Margie Miskell owned the Camelia Street house until her death in 2004. She was survived by her five living children, Lionell, Leon, Diane, Shirley, and Irma Miskell. Margie Miskell was also survived by several grandchildren including: Diane Miskell's two sons--Kevin and Tim; Shirley Miskell's daughter--Tonya; and Irma Miskell's seven children--Angela, Chantel, Eric, Bryan, Herman, Tony, and Felton Bernard.

At trial, testimony established that in 2006, Diane and Shirley Miskell were responsible for overseeing the repairs to the Camelia Street property after Hurricane Katrina. According to Kevin Miskell and Tony Bernard, once the repairs were complete, Lionell and Leon Miskell were going to move into the Camelia Street residence. Kevin Miskell also testified that the Defendant had disagreements with the family because he believed his grandmother passed her ownership rights to him when she died. Likewise, the Defendant believed he should be in charge of the finances used to repair the Camelia Street property and not his aunts.

The Defendant's oldest brother, Herman James Bernard, Jr. (" Herman Bernard" ), testified at trial and recalled seeing the Defendant with the Defendant's friend, Corey Berniard, on November 4, 2006, in a green Jeep. Herman Bernard testified that his brother the Defendant had just arrived in New Orleans from Houston, Texas. Herman stated that the Defendant and Corey Berniard came by [2014-0580 La.App. 4 Cir. 3] his trailer on Viola Street and spoke with him. He testified that he noticed that Corey Berniard was armed and told him to leave. At that point, Corey Berniard and the Defendant left.

On the same day, the Defendant's other brother Tony Bernard was visiting his uncles Lionell and Leon Miskell at the Camelia Street residence when the Defendant and his friend Corey Berniard arrived. Tony Bernard testified that the Defendant and Corey Berniard were both armed. According to Tony Bernard, the Defendant walked into the house, slapped Lionell Miskell and then started an argument about ownership of the Camelia Street property. Tony Bernard attempted to diffuse the situation by giving the Defendant money. Afterwards, the Defendant and Corey Berniard left in an SUV, but turned around and came back to the residence.

Tony Bernard testified that he witnessed his brother the Defendant and Corey Berniard shoot Lionell Miskell. Tony Bernard fled the scene as the Defendant stood over Leon Miskell and shot him. At trial, Tony Bernard stated that he called his brother Bryan and his aunt Diane Miskell, but he received no answer. He then contacted his sister Angela Bernard about the shootings. Tony Bernard testified that he told his sister to send " someone to go check" because he was too scared to go back himself. Tony Bernard also stated

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that a few days after the shootings he spoke to a NOPD detective, who presented him two photographic lineups from which Tony Bernard identified the Defendant and Corey Berniard as the men he witnessed shoot his uncles.

Responding officers, Reginald Gaines (" Officer Gaines" ) and Toka Clark (" Officer Clark" ), arrived at the 4600 block of Camelia Street close to ten o'clock at night, after receiving a call of a shooting. The officers noted the area was [2014-0580 La.App. 4 Cir. 4] deserted and dark, the remnants of Hurricane Katrina. However, they observed the body of Lionell Miskell in the street at the curbside. Upon closer observation, the officers noted several gunshot wounds to the victim's body. An EMS unit was then dispatched to the scene. By that time, other police units arrived and Officer Gaines remained with Lionell Miskell's body in the street while the other officers secured the perimeter.[1]

At that time, the officers received word that there was a second victim located in the back yard of 4635 Camelia Street, across the street from where they observed Lionell Miskell's body. The officers relocated to the backyard of the Camelia Street property where they found Leon Miskell. Officer Clark testified that Leon Miskell was conscious and moaning in pain.

Officer Shonndell Fields (" Officer Fields" ) also testified at trial that when she arrived at the scene, she observed the body of a man lying in the street. She stated that after securing the perimeter she, Officer Clark, and the other responding officers were notified of another male victim in the backyard of the house across the street from where the first victim was found. She and the other officers proceeded to the backyard where they found a black male, who had been shot, lying face down on the ground. She testified that the man was conscious and after turning the victim over, Officer Fields recognized him as Leon Miskell. She stated that she recognized him from patrolling the area and from having arrested him earlier on a burglary charge. When she asked Leon Miskell who shot him, he [2014-0580 La.App. 4 Cir. 5] responded: " My nephew, Felton Bernard." [2] At trial, Officer Fields stated that she had no knowledge of the Miskell family and did not know the Defendant.

Ann Bernard, the Defendant's aunt[3], testified that she received a telephone call on the night of the shootings from her niece Angela Bernard, who was living in Alabama. Because she lived close by, she was asked to check on Angela's aunt Diane Miskell. Ann Bernard testified that she went to Diane Miskell's FEMA trailer located at 4567 Dodt Street. When Ann Bernard arrived at the residence, she found the trailer door open and noted that she found that to be odd. She blew her car horn, but she received no response. Ann Bernard left the Dodt Street address and drove to the Camelia Street residence, where she found police officers on the scene. She described what she observed at the Dodt Street address to the officers including Officer Clark, who accompanied

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her to the location. At trial, Officer Clark testified that upon arriving at the Dodt Street location, she entered a FEMA trailer and found Diane Miskell and John Robinson shot to death.

Detective Greg Hamilton (" Detective Hamilton" ) testified at trial that he was assigned to the homicide unit on the date of the incident. When he arrived at the Camelia Street crime scene, he spoke with the responding officers, including Officer Clark, who related the circumstances of finding Leon Miskell. From his conversation with Officer Fields, he developed the Defendant as a suspect in the shooting. Detective Hamilton also directed the collection of evidence from the Camelia Street scene. The evidence consisted of three spent 9 millimeter casings [2014-0580 La.App. 4 Cir. 6] and one bullet; one spent 10 millimeter casing; as well as clothing and blood samples.

Detective Hamilton also learned of a possible second incident at the Dodt Street address from Ann Bernard, who arrived at the Camelia Street residence during his investigation of the crime scene. He testified that he sent units to investigate and later learned that two bodies were found in a trailer on Dodt Street. He relocated to the Dodt Street residence, observed the scene, and evidence was collected. The evidence included one spent 9 millimeter casing and one spent bullet in addition to photographs that were taken at the trailer. From his investigation of the Camelia Street crime scene, Detective Hamilton learned that the Dodt Street incident was related to the shootings of Lionell and Leon Miskell.

That same evening, Ann Bernard gave Detective Hamilton a recorded statement. Likewise, Detective Hamilton received recorded statements from the Defendant's brothers Bryan, Herman, and Tony Bernard. Detective Hamilton also received statements from the Defendant's fiancé, Emerald Lee, who lived in Katy, Texas, as well as Carl Breaux[4]. At trial, Detective Hamilton described the photographic lineup procedure conducted with the Defendant's brother Tony Bernard, who witnessed the shootings of Lionell and Leon Miskell. Detective Hamilton testified that based on Tony Bernard's positive identification of the Defendant and his friend Corey Berniard, he obtained arrest warrants for both individuals.

Sergeant Breck McDaniel (" Sergeant McDaniel" ) of the Houston Police Department testified that in 2006 he learned from the NOPD that the Defendant [2014-0580 La.App. 4 Cir. 7] and Corey Berniard were wanted in connection with homicides in New Orleans. Sergeant McDaniel spoke to the Defendant's fiancé, Emerald Lee, who provided a Houston telephone number for the suspects, and from which he located the suspects' apartment. Both individuals were arrested in Houston on November 13, 2006 and subsequently extradited to Louisiana.

At trial, Dr. Richard Tracy (" Dr. Tracy" ), an expert in the field of forensic pathology, testified that he performed the autopsies of Lionell, Leon, Diane Miskell, and John Robinson. Dr. Tracy stated that all victims died of gunshot wounds, and all deaths were classified as homicides.

Dr. Tracy testified that Leon Miskell was hospitalized for twenty-seven days prior to his death. He noted the bullet tracks on Leon Miskell's body, including four entry wounds on the left side of the torso, three of which entered his abdomen. Dr. Tracy indicated that the hospital declared that Leon Miskell died from bronchopneumonia. On cross-examination, Dr. Tracy testified that Leon Miskell would not have

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survived despite his development of pneumonia because he also suffered from peritonitis and septicemia caused by the gunshot wounds.

As to Lionell Miskell, Dr. Tracy testified that he suffered three fatal gunshots to the chest and torso. Toxicology tests were negative for alcohol and street drugs. Likewise, Dr. Tracy's findings from Diane Miskell's autopsy revealed that she suffered two gunshot wounds--one superficial wound to the left shoulder and a fatal shot to her head through her right ear, causing her to bleed to death. The autopsy of John Robinson proved that he died of a gunshot through the heart. Dr. Tracy also indicated that bullets were recovered from all of the victims' bodies.

Additionally, Officer Kenneth Leary (" Officer Leary" ), a NOPD firearms examiner with thirty years' experience, testified that part of his job requires him to [2014-0580 La.App. 4 Cir. 8] determine whether a particular bullet or cartridge was fired from a certain handgun, rifle or shotgun to the exclusion of all other weapons. To make his determination, he analyzes microscopic examination of markings, which are transferred from a weapon to the surface of the ammunition fired by that weapon. The markings are unique to the weapon that fired them and cannot be duplicated by any other weapon.

In this case, Officer Leary's investigation led him to test cartridge cases, bullets, bullet jackets, and lead cores in relation to the two homicide scenes. Officer Leary explained to the jury that he compared the three fired 9 millimeter cartridge cases, two fired bullets collected from Lionell Miskell's autopsy and two 9 millimeter cartridges collected from the Camelia Street residence using a comparison ...


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