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State v. Jones

Court of Appeals of Louisiana, Fourth Circuit

March 22, 2017

STATE OF LOUISIANA
v.
KENNETH JONES

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-726, SECTION "I" Honorable Karen K. Herman, Judge

          Leon A. Cannizzaro, Jr. District Attorney Kyle Daly Assistant District Attorney PARISH OF ORLEANS DISTRICT ATTORNEY'S OFFICE COUNSEL FOR APPELLEE, STATE OF LOUISIANA.

          Jane Hogan HOGAN AND HOGAN COUNSEL FOR DEFENDANT/APPELLANT, KENNETH JONES.

          Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore

          Marion F. Edwards Judge.

         An Orleans Parish jury convicted Kenneth "Bud" Jones, as charged, of two counts of attempted second degree murder and one count of being a felon in possession of a firearm, resulting from a drive-by shooting. The trial judge sentenced him to twenty-five years on each count of attempted second degree murder, and twenty years on the remaining count. After Mr. Jones admitted his status as a second felony offender, the trial judge vacated the previous sentences and resentenced him to one hundred years on each count of attempted second degree murder and twenty years on the felon in possession of a firearm count.

         Mr. Jones now appeals and raises six assignments of error pertaining to his convictions and one assignment of error in relation to his sentences. After reviewing his arguments, the record, and applicable law, we affirm the defendant's convictions and sentences. We explain our decision in greater detail below.

         I

         We begin with a recitation of the facts in this case, as adduced by the prosecution at trial, as well as the relevant procedural history.

         A

         In 2009, concerned with an increase in drug-related violence, the Federal Bureau of Investigation ("FBI") launched the Ninth Ward Initiative, a joint task force comprised of various federal and local law enforcement agencies, including the Bureau, the New Orleans Police Department ("NOPD"), and the Louisiana State Police. Over the course of its investigation, the FBI identified two rival groups from the Lower Ninth Ward, the Back of Town and the Park Boys, which were primarily responsible for the drug trade and related violence in the area. The victims in this case, Merlin Smothers and Jeremiah Harris, are associated with the Park Boys, and the defendant, Kenneth "Bud" Jones, is associated with Back of Town.

         On November 22, 2011, Merlin[1] and Mr. Harris were driving in New Orleans when a blue Monte Carlo pulled up behind them and an individual standing through the sunroof began shooting at them with an assault rifle. Mr. Harris was shot in the neck but survived; Merlin was unharmed. The Monte Carlo was spotted at the scene and attempted to flee from police. After a brief chase, the Monte Carlo crashed and police apprehended the driver, Eugene Brashears, who was the only person in the vehicle at that time.[2] Police collected two red hats from the car but did not find a gun. The driver was not charged as the shooter.

         Although both Merlin and Mr. Harris gave statements to NOPD investigators that the shooter was a black male with a red hat, neither identified the shooter to police and no suspect was arrested at that time.

         The FBI subsequently arrested Merlin and Mr. Harris in the course of a drug trafficking investigation. In an apparent attempt to curry favor with federal prosecutors, both men identified "Bud, " the defendant, as the shooter on November 22, 2011. Merlin disavowed those statements at the defendant's trial, claiming he never implicated Mr. Jones as the shooter in this or any other crime. Mr. Harris maintained that his statements to the FBI were correct and that Mr. Jones was the person who shot him.

         On December 2, 2011, the NOPD conducted aerial and ground surveillance on the defendant's associates in the hopes of locating Mr. Jones. In the course of surveillance, NOPD officers identified from aerial recordings a person who they believed to be the defendant, riding with another person in a white Dodge pickup truck. Officers followed the truck, and observed an occupant hastily exit the vehicle carrying what appeared to be an assault rifle. Investigators subsequently retrieved a discarded AK-47 from the area. Forensic testing revealed Mr. Jones to be the major contributor of DNA material on the firearm and ballistics testing confirmed that the casings found were fired from the recovered AK-47.[3]

         A grand jury indicted Mr. Jones for two counts of attempted second degree murder and one count of possession of a firearm as a convicted felon.

         B

         Mr. Jones raises seven assignments of error in this appeal. First, he claims the trial judge erred by overruling a Batson[4] challenge lodged by the defense. Relatedly, he claims that the trial judge erred by sustaining the prosecution's reverse Batson challenge. Third, Mr. Jones alleges that the failure to record eighteen bench conferences violates his constitutional rights to a complete appellate record. Next, he argues that the trial court erred by allowing the prosecution to introduce prejudicial other crimes evidence. Fifth, he claims that the evidence was insufficient to support his convictions. Sixth, Mr. Jones claims the prosecutor's remarks in closing argument, which referenced the lack of a confession, violated his constitutional right against self-incrimination. Finally, the defendant argues that his concurrent 100-year sentences are constitutionally excessive.

         We address each assignment of error in the Parts that follow.

         II

         In this Part, we begin by addressing Mr. Jones's sufficiency of evidence claim. See State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50, 55 ("When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, we first determine the sufficiency of the evidence.") (citing State v. Hearold, 603 So.2d 731, 734 (La. 1992)).

         A

         The standard of review for sufficiency of evidence applicable to criminal convictions is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The inquiry requires a reviewing court to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319.

         There are several key principles to a sufficiency review. First, we examine all the evidence considered by the jury, including evidence which may have been erroneously admitted. See Hearold, 603 So.2d at 734. Second, all the evidence is viewed in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319; State v. Clements, 15-0630, p. 7 (La.App. 4 Cir. 5/4/16), 194 So.3d 712, 717. Thus, we may consider all reasonable inferences from the evidence which the fact-finder could have made. See id.

         Finally, as a reviewing court, we are highly deferential to the findings of the trier of fact. See Jackson, 443 U.S. at 319; State v. Armstead, 14-0036, p. 11 (La.App. 4 Cir. 1/28/15), 159 So.3d 502, 512. A jury may accept as true the testimony of any witness, even a single witness, and find such testimony sufficient to establish each essential element beyond a reasonable doubt. See Clements, at p. 7, 194 So.3d at 717. And, we will only tread on a jury's presumed acceptance of a witness's testimony when that testimony is implausible or clearly contrary to the evidence. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988); Armstead, at p. 12, 159 So.3d at 512. See also State v. Macon, 06-481, p. 8, 957 So.2d 1280, 1285 ("A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.").

         B

         Mr. Jones was convicted of two counts of attempted second degree murder and one count of being a felon in possession of a firearm. The prosecution had to therefore prove that Mr. Jones had the specific intent to kill the victims, demonstrated by commission of an overt act that tends toward the accomplishment of the victims' death. See La. R.S. 14:30.1; La. R.S. 14:27. Additionally, the prosecution had to prove that Mr. Jones 1) possessed a firearm; 2) was previously convicted of an enumerated felony; 3) possessed the firearm within ten years of the previous conviction; and 4) had the general intent to commit the crime. See La. R.S. 14:95.1; State v. Scott, 13-0321, p. 8 (La.App. 4 Cir. 2/26/14), 136 So.3d 383, 389.

         C

         Construing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could conclude that Mr. Jones was guilty beyond a reasonable doubt of two counts of attempted second degree murder and of being a felon in possession of a firearm.

         1

         Jeremiah Harris testified that in 2013, he entered into a plea bargain with federal authorities, pleading guilty to distribution of heroin and conspiracy to distribute heroin in exchange for leniency during sentencing. He testified that the "No. 1 rule" of the plea bargain was that he "tell the truth, nothing but the truth" at trial. Mr. Harris stated that if he was not truthful about this incident (and others), the plea bargain would be void.

         Mr. Harris testified that when the shooting started on November 22, 2011, he turned to look behind him and saw "Bud" standing outside of the sunroof of a car firing at them with an AK-47. He described Mr. Jones as wearing a red hat and stated that he was "100 percent sure" that the defendant was the shooter. Mr. Harris stated there was nothing obstructing his view of Mr. Jones. He admitted that he had been drinking cough syrup to get high only a short time prior, but denied that it had impaired his ability to identify his shooter. Mr. Harris testified that he did not reveal the defendant's identity when questioned by the NOPD because he wanted to retaliate against Bud without police involvement. He stated that Merlin was also aware Mr. Jones was the perpetrator.

         The prosecution presented evidence that Back of Town and Park Boys were engaged in a long-running deadly feud. It likewise demonstrated that Mr. Jones aligns with Back of Town, while the victims align with Park Boys. Further, the evidence showed that Mr. Jones had attempted to kill Merlin in a prior incident and had warned Mr. Harris to "watch who you are around." Coupled with the defendant's act of shooting an AK-47 several times into the victims' vehicle, we find that the prosecution presented sufficient evidence of specific intent to kill and demonstrated an overt act in furtherance of the victim's death.

         Mr. Jones cites Merlin's trial testimony, wherein he denied identifying the defendant as the shooter to the FBI, to support his argument that the evidence is insufficient. Two FBI agents, however, Agent Christopher DiMenna and Agent Crystal Bender, testified that Merlin implicated Mr. Jones as the shooter in this incident, in addition to several others. Agent DiMenna also testified that he took a statement from Mr. Harris implicating the defendant as the shooter. As noted above, witness testimony will be upheld unless it is implausible or clearly contrary to the evidence. See Mussall, 523 So.2d at 1311; Armstead, at p. 12, 159 So.3d at 512. Clearly, the jury found Mr. Harris's testimony and the testimony of the FBI agents more credible than that of Merlin Smothers. We see no reason to disturb this finding.

         2

         As to the conviction for possession of a firearm by a convicted felon, the defense stipulated that Mr. Jones had a prior felony conviction for possession of cocaine in 2008, which is an enumerated offense under the statute and well within the ten-year cleansing period. See La. R.S. 14:95.1 A. Thus, the prosecution only needed to prove that Mr. Jones possessed the firearm. See State v. Gaubert, 15-0774, p. 9 (La.App. 4 Cir. 12/9/15), 179 So.3d 982, 988-89 ("In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal.") (internal quotation marks omitted) (citing State v. Oliphant, 12-1176, p. 12 (La. 3/19/13), 113 So.3d 165, 172).

         The evidence at trial revealed that on December 2, 2011, the NOPD conducted an aerial and ground surveillance operation in an attempt to locate Mr. Jones. A person matching the defendant's description was seen riding in a white Dodge pickup with one other person. Based on the recorded aerial surveillance, the two subjects then ran from the vehicle carrying what appeared to be an assault rifle. NOPD subsequently recovered an AK-47 from the area. Forensic testing revealed Mr. Jones as the major contributor of DNA on the firearm, with a one in 10.5 quintillion[5] probability that the DNA came from a person other than the defendant. Moreover, ballistics analysis matched the casings recovered from the scene to the firearm with Mr. Jones's DNA.

         Mr. Jones points out that no one, law enforcement or otherwise, positively identified him as being present or carrying an assault rifle on December 2nd. He also cites testimony given by Jonathan Alexander, an associate of Mr. Jones and a member of Back of Town, where Mr. Alexander testified that he was in possession of the firearm that day, and that it belonged not to the defendant, but to his friend Chris Williams, who is now deceased. He further testified that Mr. Jones was not present with him that day. On cross-examination, Mr. Alexander admitted that, at the time of trial, he was charged with second degree murder and that he and Mr. Jones were housed in the same tier at Orleans Parish Prison.

         We acknowledge that Mr. Jones was not definitively identified as having actually possessed the recovered AK-47 on December 2, 2011. We find, however, the fact that his DNA was found on the firearm as the major contributor, and that the same firearm was linked to the instant shooting where he was identified as the perpetrator, is sufficient to satisfy the essential element of possession.

         III

         We turn now to address the defendant's Batson claims.

         A

         Following voir dire of the first jury panel, the defense raised a Batson challenge, based on the prosecutor's use of peremptory challenges to strike "thus far four African-Americans out of five" from the jury pool. The following colloquy then occurred:

The Court: What is your response?
Mr. Napoli [prosecutor]: My first response would be that there is two African-Americans that we are going to keep on the Jury. The second response would be that of all the cuts used by Defense counsel, they are all on white Jurors. The third response, as to Ms. Hills, Judge, is that, first, she is an educator and is-I had some concern when I asked her about her prior Jury service. First she didn't say anything, and then she couldn't give us any details about the type of crime, when it took place or anything like that.-
The Court: I will note for the record that of the five challenges the State has exercised, one of them is a white male. So, per se, it is not satisfied and I accept the State's response as to ...

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