[Copyrighted Material Omitted]
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 492-848, SECTION " G" . Honorable Julian A. Parker, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE, STATE OF LOUISIANA.
Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLANT, JAMES WHITE.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT, EDWARD T. DAVIS.
(Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Sandra Cabrina Jenkins).
Max N. Tobias, Jr.,
[2014-0397 La.App. 4 Cir. 1] James White (" White" ) and Edward T. Davis (" Davis" ) appeal their convictions for second degree murder, a violation of La. R.S. 14:30.1. For the reasons that follow, we affirm their convictions and sentences.
History of the Case
On 3 December 2009, the state indicted White and Davis for the second degree murder of Robert Wimsatt. Both White and Davis entered pleas of not guilty at their arraignments. They filed motions to suppress the confession, evidence, and identification, which motions were subsequently denied. White filed a notice of alibi defense, and Davis filed a motion for speedy trial. Davis filed a motion to sever that the trial court denied on 28 February 2013.
On 8 August 2012, the state filed its notice of intent to offer the criminalist's report as prima facie proof. Following a four-day jury trial in July 2013, the jury found the defendants guilty as charged on 26 July 2013.
The defendants' timely motions for new trial and post-judgment verdict of acquittal were denied on 29 August 2013. Also, on that date, the trial court sentenced the
defendants to life imprisonment without benefit of parole, probation, or suspension of sentence. This timely appeal followed.
[2014-0397 La.App. 4 Cir. 2] Facts, Evidence, and Testimony at Trial
Robert Wimsatt was shot and killed while servicing an ATM at a convenience store, Lawson's Grocery, in the Algiers section of New Orleans on 16 June 2009.
New Orleans Police Department (" NOPD" ) Sergeant Nicholas Gernon investigated the shooting of Mr. Wimsatt that occurred at 1625 Newton Street. The initial report he received indicated that the victim was alive and in route to the hospital; however, by the time the sergeant arrived at the hospital, the victim had died. Sergeant Gernon relocated to the crime scene, arriving at about 11:00 a.m. The scene had already been taped off and was under the control of the police crime lab, which was photographing the area and collecting evidence - spent bullet casings, bank money wrappers, and the victim's shirt and keys. The sergeant then noted that the shooting actually occurred in the parking of Lawson's Grocery. The sergeant identified photographs of the crime scene, including one of the victim's bloody shirt showing a bullet hole in the front.
Sergeant Gernon's inspection of the area around the victim's vehicle indicated that the victim encountered - struggled with and/or attempted to flee - his assailant(s) while in, or close, to his vehicle. NOPD Officers canvassed the area for witnesses and surveillance video that might assist in the investigation; although the officers spoke with several people from the neighborhood, no one would give a statement because they did not want to be involved. The officers had no luck locating any surveillance video of the actual crime; however, Sergeant Gernon did locate surveillance videos from several businesses short distances from the shooting scene, which enabled him to retrace the victim's driving route from the [2014-0397 La.App. 4 Cir. 3] bank, where the victim made a cash withdrawal at approximately 10:00 a.m., and then to the scene of the shooting, showing the victim's time of arrival as 10:13 a.m. Gernon noted that the videos showed a green Mitsubishi Montero Sport vehicle following the victim's vehicle. The sergeant identified a state's exhibit as the map he drew depicting the victim's route as shown in the surveillance videos. The information on the map indicated that the victim left the bank about 10:00 a.m., drove past O. Perry Walker High School and the naval base, and arrived at the convenience store. For days after the shooting, Sergeant Gernon canvassed the neighborhood for witnesses, but located none. He did, however, learn that the victim was accosted by two assailants.
NOPD Detective Decinda Barnes testified that she assumed the investigation of this homicide on 22 July 2009, when Sergeant Gernon was reassigned. She began her investigation by reviewing Sergeant Gernon's report, viewing the crime scene, and meeting with the victim's family. She stated that on 23 July 2009, she held a press conference to announce that Crime Stoppers posted a $12,500.00 reward for information leading to the arrest of the perpetrator(s). Thereafter, the detective obtained the identity of the last person to use the ATM prior to the shooting, obtaining a name and address for that user/cardholder.
The detective spoke with the cardholder, who directed her to Jamal Nailer (" Nailer" ), the cardholder's boyfriend. When Detective Barnes spoke with Nailer in mid-August 2009, he gave her the names of two individuals as suspects - James " Peanut" White and Edward Davis. Nailer identified the suspects from [2014-0397 La.App. 4 Cir. 4] photographic lineups compiled by the detective. Nailer also identified Beau Lester (" Walton" ) as an eyewitness to the shooting. Walton identified White as the shooter. Walton did not identify Davis from a lineup, although he knew Davis from the neighborhood and was aware of Davis' association with White. Further investigation revealed that Davis lived in the 900 block of Newton Street and White lived in the 500 block of Wagner Street (which intersects Newton Street). Based upon that information Detective Barnes obtained arrest warrants for the defendants and search warrants for the defendants' residences.
Detective Barnes executed the search warrant at White's residence and recovered a pair of brown army-type shorts, a white t-shirt, three pieces of paper bearing White's name and address, and a photograph of White and Davis together.
Detective Barnes identified a state's exhibit as a map depicting the location of the shooting in relation to where the search warrants were executed. The two locations searched were within blocks of each other. Detective Barnes recalled that when White was arrested, he wore medium, shoulder length, dreadlocks.
Detective Barnes recounted that Davis gave her one recorded and two verbal statements, each of which was preceded by Davis' signing waiver of rights forms. The detective identified a state's exhibit as the waiver of rights form executed by Davis prior to his 14 August 2009 recorded statement. In that statement, Davis [2014-0397 La.App. 4 Cir. 5] initially denied knowing White, but later changed his story and admitted that he knew White and had seen him at Lawson's Grocery on the day of the shooting. Davis also informed Detective Barnes that he purchased a gun from White two days after the shooting.
On 18 August 2009, Detective Barnes attempted to interview Davis once again, but she did not record the interview because Davis repeatedly contradicted himself.
Detective Barnes identified a state's exhibit as the waiver of rights form executed by White, and stated that the gist of White's statement to her was his denial of having shot the victim. Detective Barnes said that White claimed he was at work at the convention center at the time of the murder. White gave her the name of an individual who would verify his claim.
Under cross-examination, Detective Barnes testified that she did not recover a weapon from White's residence, but she
did recover a magazine containing .22 or .25 caliber bullets. She also recalled that the murder weapon was a .38 caliber firearm, which was not recovered. She recovered no property belonging to the victim from White's residence.
During further cross-examination, Detective Barnes denied threatening either of the defendants with the death penalty. She remembered that Davis said he bought a .38 caliber weapon from White two days after the shooting. She denied purposely not recording the first half of Davis' statement because he was not saying what she wanted him to say. Detective Barnes acknowledged that the [2014-0397 La.App. 4 Cir. 6] murder weapon was a .38 caliber handgun, that the bullets which killed the victim did not match Davis' .38, and that the murder weapon had never been recovered.
Explaining why none of the clothing recovered from White's residence was submitted for DNA testing, Detective Barnes said she knew what blood stains look like, and she could recognize gunpowder residue. She examined the clothing and found no useable evidence for testing. She added that it was apparent the clothing had been laundered recently, so it was deemed of no evidentiary value.
Walton testified on behalf of the state and admitted that he was incarcerated at the time of trial and had several criminal convictions -- burglary of an inhabited dwelling, possession of heroin, and possession of marijuana. Walton said that on the day of the shooting he was sitting on the front porch of a friend's residence, across the street from Lawson's Grocery. He looked toward the grocery and noticed a man struggling with the victim in the parking lot. It appeared that the two were tussling over something the victim had in his hand. A few seconds later, gunshots rang out. The victim fell to ground. He witnessed the shooter stand over the victim and fire three/four more shots. Walton did not speak with police the day of the shooting, but Detective Barnes contacted him a few days later by cell phone as he was waiting to board a bus on his way to work. Detective Barnes met him at the bus stop. Walton told the detective that he recognized the shooter, and that his name was " Peanut." Walton viewed a photographic lineup from which he identified White as " Peanut," the man he saw shoot the victim. He pointed out the defendant in the courtroom. He stated that he recognized White from seeing him on numerous occasions in the neighborhood. Walton also said he recognized Davis as the man who was with White at the time of the shooting. Walton denied [2014-0397 La.App. 4 Cir. 7] receiving any reward for identifying the defendants, and said that he had not been promised anything in return for his testimony.
Walton stated that he had appeared before the grand jury and related what he witnessed. He added that after he spoke with Detective Barnes, he was attacked by two unknown males. His injuries sustained in the attack required medical attention.
During cross-examination, Walton acknowledged that he viewed the shooting from a distance of approximately eighty-eight yards. Walton said that the shooter wore cargo pants, a white t-shirt, and a cap. He saw a second man drive away from the scene in a black and gold/silver Montero. He denied that he was testifying to save himself from a multiple bill, and, further, saidthat he was not aware of any reward money. Walton told Detective Barnes that he could not see the second
man's face, and he was unsure if the second man was involved in the shooting. However, on redirect, Walton was positive that the shooter was White, and that Davis was the second man at the scene. He adamantly said he recognized the two at the time of the shooting because he had seen them together in the neighborhood on many prior occasions.
Nailer testified that he was twenty-four years old and had grown up in Algiers. He admitted that he was incarcerated at the time of trial, and asserted that he had no prior convictions. He stated that he knew both defendants his entire life because they had all grown up together in Algiers. He identified the defendants in court and said that White went by the nickname " Peanut."
Recounting the events of 16 June 2009, Nailer said he attempted to use his girlfriend's ATM card to obtain cash from the ATM machine located at Lawson's [2014-0397 La.App. 4 Cir. 8] Grocery, but the machine was empty. As he was preparing to leave, he spotted White and Davis. As White entered the store, he told him, " I might get ready to handle my business. I'm a holler at you later. Go home, be safe." Nailer said he knew White meant he was about to get into something no good. Nailer noticed the silhouette of a gun under White's shirt. Davis did not say anything to him, appearing to be very nervous. Nailer said he heeded White's advice to leave the store. As he left, Nailer saw Walton sitting on the porch of a house across the street. Nailer also said that as he was leaving the store, he thought he remembered seeing a white man arrive to service the ATM. He walked toward his home around the corner. A short time later, he heard gunshots and began to run.
Shortly thereafter, Nailer returned to the scene and observed the paramedics moving the victim's body into an ambulance. He did not speak to police at that time because he feared for his life and the lives of his family. However, about one or two months later, he met with Detective Barnes, telling her what he witnessed while at the grocery on the day of the shooting. From photographic lineups provided by Detective Barnes, Nailer identified White as the armed man and Davis as the man who was with White at the grocery.
Nailer admitted that, at a motion hearing prior to trial, he recanted everything he had earlier told Detective Barnes about the day of 16 June 2009. He explained that he did so because he was scared that he would be killed if he testified against the defendants. He added that as a result of recanting his earlier testimony, he was charged with perjury. After speaking with his attorney, Nailer agreed that for his safety, he should be held in police custody until trial of this matter.
[2014-0397 La.App. 4 Cir. 9] Under cross-examination, Nailer admitted that part of his reason for testifying at trial was to rid himself of the perjury charge relating to the recantation of his testimony concerning White and the shooting. The other reason was to help the victim's family get justice. He denied any interest in the reward money and claimed he was telling the truth at trial about the shooting.
George Flood (" Flood" ), who was incarcerated at the time of trial, testified that he became acquainted with Davis while they were both in the Orleans Parish Prison. He notified the District Attorney that he received information about this case from Davis. Flood said that Davis told him that he and " Nut" robbed the ATM
man. Davis explained to him that while he and White were in the convenience store, a friend of theirs came into the store. White told the friend to be safe and leave the store. Davis also told him that " had they [defendants] waited until the [victim] came out [of the store] they would have gotten more money." Flood said he wrote letters to " Nut" for Davis in which Davis assured " Nut" he would not turn state's witness. Flood explained that Davis recounted that he and White were from the area where the murder occurred, and they knew the victim's schedule for servicing the ATM machine. Davis told him that they got less than $5,000.00 from the victim, and the victim had another $20,000.00 to $30,000.00 in the back of his truck. Flood said Davis told him that White was the shooter.
Flood indicated that Davis told him that White's defense was that he (White) was already clocked in at his job at the time of the shooting, and that would be White's alibi. He recalled that one day when Davis returned from court, he told Flood: " . . . you know, the [victim's] daughter was crying . . . you know, it's been [2014-0397 La.App. 4 Cir. 10] four years, you know. I wish the b***h would hurry up and get over it. It's been four years . . . [h]e's dead already."
On cross-examination, Flood denied receiving any promise of preferential or lenient treatment from the District ...