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State v. Hicks

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

STATE OF LOUISIANA
v.
KENNETH E. HICKS, III

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 13, 82, DIVISION "B" HONORABLE MARY H. BECNEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Bridget A. Dinvaut, Orenthal J. Jasmin

          COUNSEL FOR DEFENDANT/APPELLANT, KENNETH E. HICKS, III Bruce G. Whittaker

          Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson

         AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER

         MEJ

         SMC

         RAC

          MARC E. JOHNSON JUDGE

         Defendant, Kenneth E. Hicks, III, appeals his conviction for second degree murder rendered in the 40th Judicial District Court, Division "B". For the following reasons, we affirm Defendant's conviction and sentence and remand the matter for correction of the Louisiana Uniform Commitment Order.

         FACTS AND PROCEDURAL HISTORY

         On April 15, 2013, the St. John the Baptist Grand Jury indicted Defendant, with second degree murder, in violation of La. R.S. 14:30.1. Defendant was arraigned and pleaded not guilty on April 16, 2013. On January 20-22, 2016, the case was tried before a 12-person jury.

         At trial, Dontae Bond, Defendant's nephew, testified that on the night of February 20, 2013, he was at Alex's Sports Bar[1] with two friends. While having drinks and talking to people in the patio area of the bar, he heard a gunshot. Mr. Bond looked back and saw Defendant holding a gun, and he also saw a man on the ground. He did not see anyone else in that room with a gun after the gunfire. Mr. Bond identified the victim as his friend, "Turk."[2] He asserted that he and Defendant were not together that night, but he and Defendant were in the bar at the same time.

         Mr. Bond testified that after the shooting, he and his friends left. They drove around and then went to Defendant's house. Mr. Bond stated that he spoke to Defendant and asked him what happened, after which Defendant said, "Don't say nothing." The police arrived afterwards. Mr. Bond indicated that the police arrested him in connection with the shooting, and he gave three statements to them. He said he initially told them he did not know anything, but ultimately he told the police what happened because he did not want to be charged with a crime he did not commit.

         Wilfred Lewis testified that on February 20, 2013, he also was in Alex's Sports Bar. He stated that he arrived at 10:15 p.m., after which his friend, "Turk, " asked him to give him a ride home. Mr. Lewis sat in the patio area of the bar and waited while "Turk" helped his uncle, the owner of the bar, clean the area. While sitting there, Mr. Lewis heard a voice and then "Turk's" voice, after which Mr. Lewis looked down for a second and then heard a shot. Mr. Lewis testified that when he looked up, he saw "Turk" spin around and fall on a table. A man, whom he later identified as Defendant, turned around and had a gun in his right hand. Defendant put the gun in his pocket. Mr. Lewis explained that when Defendant passed by him to leave, he brushed against Defendant. Defendant then turned around and pointed a gun at Mr. Lewis, and Mr. Lewis held up his hands begging Defendant not to shoot him. Mr. Lewis testified that Defendant subsequently backed out the screen door, walked to a car across the street, and left the scene.

         Mr. Lewis recalled that Defendant was not upset and had no emotional response after the shooting. He stated that he did not know Defendant's name, but he would never forget his face. He also stated that no one else had a gun that night. Mr. Lewis was positive that Defendant was in the bar that night, and Defendant shot "Turk." Mr. Lewis admitted that he had seven convictions for possession of cocaine and other non-drug convictions. Mr. Lewis insisted that no one made promises to him for his testimony.

         The victim, Anthony Young, died as a result of the shooting. Dr. Samantha Huber, who was accepted as an expert in forensic pathology, testified that she performed the autopsy on the victim. She determined that the cause of death was a gunshot wound to the inner aspect of his left eye with a bullet going through the base of his skull through his brain and coming to rest in a fracture at the back right of his skull. Dr. Huber stated that she retrieved the projectile and gave it to a crime scene technician. Dr. Huber testified that the gunshot wound was from an intermediate range of six inches to two feet away. She further stated that the toxicology report reflected that there was cocaine and alcohol in the victim's system. Dr. Huber asserted that there was evidence of recent drug use because there was "parent cocaine" in his blood.

         Detective Michael Pugh of the St. John Parish Sheriff's Office crime scene division testified that on the night of February 20, 2013, he responded to a call involving a homicide at Alex's Sports Bar. When he arrived, he collected evidence and took photographs. He identified the contents of the victim's pockets, which included cocaine.[3] Detective Pugh stated that he searched Defendant's home but found no guns or ammunition inside. He further stated that he searched the Nissan vehicle parked in front of Defendant's home and seized a 9mm Taurus handgun from the trunk and two phones from the interior of the vehicle. Detective Pugh asserted that he collected a Winchester .45 caliber shell casing from the floor of the bar. He maintained that no gun was ever found that linked Defendant to the crime.

         Detective Walter Stevens, Jr. of the St. John Parish Sheriff's Office testified that on February 20, 2013, he responded to a call involving a homicide at Alex's Sports Bar. His investigation led him to arrest Defendant and Mr. Bond. Defendant did not give a statement and wanted an attorney. Mr. Bond initially denied knowing anything but later admitted that Defendant shot the victim. Detective Stevens testified that Mr. Lewis later contacted him and positively identified Defendant in a photographic lineup as the shooter. He further testified that Mr. Lewis also positively identified Mr. Bond as being present at the time of the shooting.

         Detective Juan Watkins of the St. John Parish Sheriff's Office testified that he interviewed Mr. Lewis in connection with the homicide that occurred on February 20, 2013. Mr. Lewis recounted the events of the evening in question to the detective. Detective Watkins presented Mr. Lewis with a photographic lineup, after which Mr. Lewis positively identified Defendant.

         Laneka Frank-Hicks, Defendant's wife, provided an alibi for Defendant. She testified that on February 20, 2013, at 9:15 p.m., she contacted Defendant and told him that she was on her way home. She arrived home at 9:30 p.m. When she got inside, Defendant was sitting on the sofa, watching television and eating. Mrs. Frank-Hicks testified that she got in the bathtub at 10:00 p.m., and she and Defendant went to bed no later than 11:00 p.m. She recounted that at approximately 2:30 a.m., her daughter called and told her the police were looking for her and Defendant. Mrs. Frank-Hicks explained that she heard a knock at the door, and when she opened it, officers were present. She further explained that the police subsequently obtained a search warrant and searched her house and her vehicle. Mrs. Frank-Hicks testified that she told an officer that Defendant told her he had gone to Alex's Sport's Bar earlier that day.

         Detective Stevens testified in rebuttal that when he went to Defendant's house, he observed four black males congregated around a Nissan Maxima vehicle, and Defendant was standing right by the vehicle. He further testified that when he informed Defendant that he and the other subjects were to come with him to the Criminal Investigations Division for an interview, Defendant wanted to notify his wife that he was going to be leaving with them. Detective Stevens testified that he believed Defendant knocked on the bedroom door to awaken his wife, and she followed them outside.

         At the conclusion of the presentation of evidence at trial, the jury found Defendant guilty as charged. On February 16, 2016, Defendant filed a Motion for New Trial, which was denied on February 22, 2016. Also on February 22, 2016, Defendant waived sentencing delays, after which the trial judge sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Subsequently, Defendant filed a Motion for Appeal, which was granted. The instant appeal followed.

         ASSIGNMENTS OF ERROR

         On appeal, Defendant alleges the trial court erred by prohibiting the jury from learning of the victim's criminal conviction record, which denied him his Sixth Amendment right to present a defense, and 2) it was an error for the prosecutor to personally attack defense counsel in closing argument by ...


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