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State v. Washington

Court of Appeals of Louisiana, Fifth Circuit

April 12, 2017

STATE OF LOUISIANA
v.
OTIS D. WASHINGTON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-3129, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Angel G. Varnado

          COUNSEL FOR DEFENDANT/APPELLANT, OTIS D. WASHINGTON Bruce G. Whittaker

          Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

         MEJ

         FHW

         RAC

          MARC E. JOHNSON JUDGE

         In this appeal, Defendant seeks review of his convictions, claiming there was insufficient evidence to convict him. For the reasons that follow, we affirm Defendant's convictions.

         On July 10, 2015, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Otis D. Washington, with two counts of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (counts one and two); aggravated assault with a firearm in violation of La. R.S. 14:37.4 (count three); and aggravated criminal damage to property in violation of La. R.S. 14:55 (count four). Defendant pled not guilty and proceeded to trial on April 25, 2016. After a two-day trial, a 12-person jury found Defendant guilty as charged on all four counts. Two days later, the State filed a multiple bill of information as to count four, alleging Defendant to be a third felony offender based on a 2014 predicate conviction for unauthorized use of a movable and a 2010 predicate conviction for simple robbery.[1]

         On May 2, 2016, the trial court sentenced Defendant to 20 years at hard labor without benefit of parole, probation or suspension of sentence and a $5, 000 fine each on counts one and two; 10 years at hard labor and a $5, 000 fine on count three; and 15 years at hard labor and a $5, 000 fine on count four. The trial court ordered the sentences to run concurrently with each other.

         Defendant initially denied the allegations in the multiple bill, but subsequently stipulated to his status as a third felony offender at a multiple bill hearing on May 19, 2016. The trial court vacated Defendant's original sentence on count four and imposed an enhanced sentence under the multiple offender statute of 20 years at hard labor without benefit of probation or suspension of sentence, to run concurrently with Defendant's other sentences.

         FACTS

         Sometime between 9:00 a.m. and 10:00 a.m. on April 28, 2015, the victim, David Quazel Roberts, and his friend, Cassandra, [2] went to get breakfast at Duncan's, a corner store which is located down the street from Defendant's mother's house on Warren Street in Kenner. As they were leaving the store, Mr. Roberts heard Defendant's voice.[3] Mr. Roberts could not clearly see Defendant because he was not wearing his glasses. When Mr. Roberts asked Cassandra who it was, Cassandra stated that it was Defendant. According to Mr. Roberts, Defendant was holding a gun, looked like he was crying "like somebody had made him mad, " and was "talking and saying a bunch of yackking [sic] what he was going to do, " specifically that he was going to kill Mr. Roberts.[4] Defendant paced back and forth across the street from the store while Mr. Roberts and Cassandra walked to Mr. Roberts' car, a 1997 gold Buick LeSabre.

         Mr. Roberts testified that Cassandra told Defendant not to shoot since she was in the car. Defendant responded to Cassandra with profanity. Mr. Roberts exchanged further profanities with Defendant and led Defendant to believe he was armed, even though he was not. Once Mr. Roberts and Cassandra were in the vehicle, Mr. Roberts started to back up and then hit the accelerator, at which time Defendant started firing. The first shot hit the door of the vehicle, and the second shot hit the window, breaking it. Through the rearview window, Mr. Roberts saw Defendant stop shooting and run towards his mother's house on Warren Street. Mr. Roberts then called his mother and asked her to call Defendant's mother to tell Defendant "to chill."

         The next day, April 29, 2015, Mr. Roberts was stopped at a red light on a two-lane road[5] in Jefferson Parish when a red Suburban pulled alongside of him. Mr. Roberts saw Defendant, who was armed with a gun, hanging out of the window and waving. Mr. Roberts also saw several other people in the vehicle, all of whom were armed with guns. Fearing for his life, Mr. Roberts ran the red light.

         Later that night, at approximately 11:20 p.m., Mr. Roberts called 9-1-1 from a parking lot near Zephyrs Stadium in Metairie to report the two incidents. Officer Danny Julian with the Jefferson Parish Sheriff's Office responded to the call and met with Mr. Roberts and his mother in the Zephyrs Stadium parking lot. Officer Julian testified that Mr. Roberts reported that Defendant, along with several males, drove up on the side of him, while he was sitting in his vehicle at a red light, and pointed an assault rifle at him. Mr. Roberts also reported an incident that occurred in Kenner where shots were fired at him while he was inside his vehicle. Officer Julian observed that Mr. Roberts' vehicle had a bullet hole and shattered windows. Officer Julian described Mr. Roberts' demeanor as very afraid and nervous. He took Mr. Roberts' statement about the first reported incident and contacted the Kenner Police Department regarding the second reported incident since it occurred in Kenner.

         Officer Joseph Scamardo with the Kenner Police Department responded to the Zephyrs Stadium parking lot on April 30, 2015, at 12:40 a.m. He took Mr. Roberts to the Kenner Police complex where he took Mr. Roberts' statement and crime scene took photos of Mr. Roberts' vehicle, which had several bullet holes and two shattered windows. No projectiles were located in the vehicle. Officer Scamardo stated that Mr. Roberts, via his cellphone, provided a photograph of Defendant obtained from Facebook. Mr. Roberts indicated that the handgun Defendant was brandishing in the Facebook photograph was the same handgun he observed Defendant use in the shooting incident.

         After taking Mr. Roberts' statement, Officer Scamardo went to Duncan's to search the area in an attempt to locate shell casings or other stray projectiles. Officer Scamardo testified that he was unable to find any evidence, there was no available surveillance footage of the area, and no 9-1-1 calls were placed following the shots. Nonetheless, Officer Scamardo obtained an arrest warrant for Defendant.

         Defendant was subsequently arrested on May 7, 2015, at his girlfriend's apartment in Metairie by the United States Marshall's Fugitive Task Force. At the time of his arrest, Defendant did not have any firearms on his person and no firearms were collected from the apartment in the arresting officer's presence.

         In his defense, Defendant presented the sole testimony of his employer, who testified that Defendant worked on both April 28th and 29th from approximately 3:00 p.m. until 10:00 p.m. Defendant's employer did ...


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