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State v. Thomas

Court of Appeals of Louisiana, Third Circuit

April 20, 2017

STATE OF LOUISIANA
v.
MARLON FRANK THOMAS

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 32246-12 HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

          John F. DeRosier District Attorney Karen C. McLellan Assistant District Attorney Counsel for Appellee: State of Louisiana

          Chad Ikerd Counsel for Defendant/Appellant: Marlon Frank Thomas

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Phyllis M. Keaty, Judges.

          PHYLLIS M. KEATY JUDGE

         Following a jury trial, Defendant, Marlon Frank Thomas, was found guilty of aggravated battery, aggravated burglary, attempted armed robbery, and attempted armed robbery with a firearm. The trial court sentenced Defendant to a total of forty years at hard labor. He now appeals his convictions. For the following reasons, we affirm.

         FACTS

         On October 18, 2011, two masked men entered the Lake Charles, Louisiana, apartment of the victim, Bradford Jacobs, demanding money. A fight ensued, and the victim was shot in the back. The victim survived but was unable to identify the perpetrators.[1] DNA evidence retrieved from a glove found at the scene linked Defendant to the crime.

         PROCEDURAL HISTORY

         Defendant was charged by grand jury indictment with one count of attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, and one count of home invasion, a violation of La.R.S. 14:62.8. Defendant pled not guilty to the charges. Over defense counsel's objection, the indictment was later amended to change count two to aggravated burglary, a violation of La.R.S. 14:60, and to add two additional charges: count three-attempted armed robbery, a violation of La.R.S. 14:27 and 14:64, and count four-attempted armed robbery with a firearm, a violation of La.R.S. 14:27 and 14:64.3.[2] Defendant pled not guilty to the amended charges. The indictment was amended a second time to correct the name of the victim in count one and to add more specific information to counts two, three, and four.

         Defendant's jury trial began on July 13, 2015. The jury retired for deliberations on July 16, 2015. After sending several notes to the trial court indicating that they were deadlocked, the jury returned the following verdicts late that evening: count one-guilty of aggravated battery (10-2); count two-guilty of aggravated burglary (11-1); count three-guilty of attempted armed robbery (11-1); and count four-guilty of attempted armed robbery with a firearm (11-1). Thereafter, the trial court ordered a pre-sentence investigation (PSI) and set the matter for sentencing. Defendant filed a Motion for New Trial, which the trial court denied after a hearing. On October 13, 2015, the trial court imposed the following sentences: count one (aggravated battery)-five years at hard labor; count two (aggravated burglary)-fifteen years at hard labor; count three (attempted armed robbery)-thirty-five years at hard labor; and count four (attempted armed robbery with a firearm)-five years at hard labor. The trial court ordered counts one, two, and three to run concurrently with each other and ordered counts three and four to run consecutively with each other. Defendant filed a written motion to reconsider sentence, which the trial court denied without a hearing.

         Defendant now appeals, alleging the following assignments of error:

I. Evidence was insufficient to prove beyond a reasonable doubt that Marlon Thomas was one of the masked men who robbed the victim in this case.
II. The Trial Court abused its discretion and committed reversible error by not protecting Marlon Thomas' Sixth Amendment Rights by securing any waiver from Mr. Thomas of an actual conflict of interest his attorneys and their law firm had between their simultaneous representation of him and one of the State's key, adverse eye-witnesses, over a defense objection.
III. Trial Court erred by allowing the State to ask questions of Dr. Shimer about medical reports and medical issues outside the scope of general surgery, the only field in which he had been accepted as an expert, when the State deliberately prevented giving the defense notice of such testimony.
IV. Trial Court erred in not granting Marlon Thomas' Motion for a New Trial because the State's comments in closing that gave the jury the impression that Mr. Thomas had to be forced to provide his DNA by court order was factually wrong and impermissibly shifted the burden of proof onto the defense; thus, an admonition by the court was insufficient to protect Mr. Thomas' rights.

         DISCUSSION

         Errors Patent

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review has revealed one error patent. Defendant was incorrectly advised at sentencing that he had two years from that date to file an application for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 provides that a defendant has two years after the conviction and sentence become final to seek post-conviction relief. The trial court is directed to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of the opinion and to file written proof in the record that Defendant received the notice. See State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ denied, 09-275 (La. 11/20/09), 25 So.3d 795.

         Assignment of Error Number One

         Defendant asserts the evidence was insufficient to prove he was one of the men who robbed the victim. He points out that no witness identified him as one of the perpetrators, that he did not confess to the crime, and that his conviction was based on circumstantial evidence.

The analysis for sufficiency of the evidence claims is well settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

         When the sole issue is Defendant's identity as the perpetrator, the supreme court has explained:

[W]hen the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations.

State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (citations omitted).

         Evidence at Trial

         The first witness to testify for the State was Robert Broussard, Supervisor of Information for Calcasieu Parish 911. Mr. Broussard identified State's Exhibit 1 as a compact disc he prepared at the request of the District Attorney's Office which contained audio recordings of two 911 calls concerning an October 18, 2011 incident. The recordings were played for the jury. A caller who identified himself as "Gregory" stated that he needed police at 410 6th Street. Gregory explained that he was eating with friends when two men dressed in black and wearing masks entered the apartment with guns and began fighting with someone in the home. He stated that he was able to get out of the apartment and that as he watched the two intruders later walk away from the apartment, one of them appeared to have been shot in the foot.

         The next witness called by the State was Sergeant Franklin Fondel, a seventeen-year veteran of the Lake Charles Police Department, who testified extensively about his investigation in this case. He stated that he responded to the scene after learning about an incident while monitoring his police radio. Upon his arrival, he encountered Cristin Kibodeaux [3] standing in the driveway crying. Ms. Kibodeaux told him that her friend had been shot. Sergeant Fondel approached the apartment and saw the victim lying near the doorway. An Acadian Ambulance had arrived and was preparing to transport the victim to a hospital.

          Sergeant Fondel later met the victim's upstairs neighbor, Gregory Jones, [4] in the front yard and learned that Mr. Jones was in the victim's apartment at the time of the invasion. Thereafter, Sergeant Fondel had Mr. Jones and Ms. Kibodeaux brought to the police station to give video statements to Detective David Roup, who was working the case with him. Sergeant Fondel requested that headquarters send Jordan Ashworth, an ID Technician (ID Tech), to process the scene. He then joined Officer Dustin Fontenot near a red dumpster at the corner of Hodges and 6th Streets. According to Sergeant Fondel, Ms. Kibodeaux and another witness had told Officer Fontenot that they heard a loud boom when the two suspects ran from the apartment towards Hodges Street before getting into a white Lumina with dark tinted windows. Sergeant Fondel stated that when Officer Fontenot opened the dumpster, it was empty of trash but contained two gloves and a ski mask.

         Sergeant Fondel explained the layout of the victim's apartment, describing it as shotgun style with a bedroom/living room, followed by a kitchen, and then a bathroom which led out the back door to a patio. Between the toilet area and the back door, Sergeant Fondel saw a white left-handed garden glove with black beads which he collected as evidence. When shown State's Exhibit 17, Sergeant Fondel described it as an envelope labeled "One gray and white glove" with a notation that the glove was "Collected from the bathroom floor and front of back door." Sergeant Fondel examined the glove and identified it as the glove seized from the victim's bathroom floor. Sergeant Fondel also recalled observing three 380 shell casings in the kitchen and two more in the bathroom, all of which were photographed and logged into evidence at the police station by the ID Tech.

          Sergeant Fondel further testified that witnesses told him that two males had entered the apartment dressed in black, wearing ski masks, and carrying weapons. One subject was described as being short, approximately 5'5", and the other suspect was described as being tall, approximately 6'1". Through his investigation, Sergeant Fondel learned that Defendant is 6'0". When asked his next step in the investigation, Sergeant Fondel stated he contacted the hospitals to see if anyone had sought treatment for a gunshot wound since a witness reported seeing one of the suspects hobbling away from the scene as if he had been shot. Sergeant Fondel did not learn of anyone other than the victim receiving treatment for a gunshot wound around the time of the incident.

         Sergeant Fondel testified that after the scene was processed, he and the ID Tech went to check on the victim at St. Patrick's Hospital Emergency Room. The victim, who was in extreme pain, was being treated for a gunshot wound to his upper right back and for two cuts to the top of his head that had been inflicted by the suspects; the ID Tech photographed the victim's injuries. The victim was unable to provide Sergeant Fondel with any information regarding who was responsible for shooting him. Thereafter, the victim underwent emergency surgery to treat his gunshot wound. The photographs taken by the ID Tech were shown to the jury during Sergeant Fondel's testimony.

         Sergeant Fondel testified that two days after the October 18, 2011 incident, he received an anonymous phone call regarding the identity and location of a subject that was possibly involved in the incident. The tipster said the subject had suffered a gunshot wound and was trying to get out of town to seek medical attention. When Sergeant Fondel and several officers from the S.W.A.T. team arrived at the address given to them by the anonymous caller, they were advised by the resident who answered the door that her friend "Marlon Thomas, " i.e., Defendant, was there, and they were given permission to enter the house. Sergeant Fondel found Defendant in a back bedroom with blood-soaked gauze wrapped around his left knee. Defendant was placed under arrest and agreed to get medical attention. During his testimony, Sergeant Fondel identified a photo depicting a circle around the area of Defendant's left calf where a bullet was lodged. Sergeant Fondel stated that after the bullet was removed from Defendant's leg, it was immediately put into a jar and given to the ID Tech. Sergeant Fondel testified that the bullet removed from Defendant and the five casings found at the victim's apartment were brought to the Louisiana State Police Crime Laboratory (La. Crime Lab) in Baton Rouge, Louisiana, by an ID Tech. Defendant was brought to the detective division after he left the hospital. Defendant gave a statement wherein he claimed he was shot on October 18, 2011, around 6:15 p.m., in the Fisherville area.[5] Defendant admitted that he failed to report the gunshot to police and to get medical attention. In his statement, Defendant stated he was in an alley area when someone drove by and shot him. When asked if anyone reported shots fired in the Fisherville area at that time, Sergeant Fondel responded:

None. I checked with our headquarters. Most of the time when you have shots fired anywhere in the city, sometime if someone else would hear shots or something, they would call just to say shots were fired in the area. We had no shots fired in that area on that date at 6:15, or any that evening time. The only shots fired call we had of a shooting [] was on 410 6th Street, where we was [sic] dispatched to.
When the State questioned Sergeant Fondel about the dumpster, he replied:
I advised earlier that Officer Dustin Fontenot, after obtaining that information from the witness, Ms. Kristen Kibodeaux, he went to that area to check it. And he observed the ski masks and observed two gloves, which the gloves was [sic] black and white. The black beads, white, with all black ski mask that was in the dumpster, the red dumpster.

         Sergeant Fondel described a close-up picture of the ski mask and two gloves found in the dumpster. When asked if he was able to make any connection between the items found in the dumpster and Defendant's accomplice, Dione Daugherty, Sergeant Fondel explained:

Yes. After those items were submitted to our Southwest Crime Lab here in Lake Charles, Louisiana. And - - and in December, a hit came back off of those gloves and the ski mask, which came back from a CODIS hit to Dionte Dougherty [sic], at which time we was - -had to obtain DNA from Dionte Dougherty [sic] so it can be compared to the CODIS hit that the crime lab had discovered. And once they discovered that and we got the DNA, we submitted back to the crime lab, and they compared it, and it came back positive to Dionte Dougherty [sic].

         On cross-examination, Sergeant Fondel stated he was told that Joshua Plummer[6] was at the victim's residence prior to the incident. When asked if Mr. Plummer's name came up during Defendant's interview, Sergeant Fondel stated that "it probably did." Mr. Plummer's name also came up in his interview with the victim, Bradford Jacobs. According to Sergeant Fondel, the victim stated that Mr. Plummer had been at his residence between 2:00 and 8:00 p.m. on the day of the incident and that Mr. Plummer knew the victim had a large amount of cash. Sergeant Fondel learned that Mr. Plummer left quite suddenly just before the incident. Sergeant Fondel did not interview Mr. Plummer at that time.[7]

         Sergeant Fondel noted that the name Anthony Batiste came up in his investigation, but not as having involvement in the incident in question. As a result, he did not interview Mr. Batiste. Sergeant Fondel stated that when he investigated the shooting death of Mr. Batiste that occurred after this incident, he noted in his report that Mr. Batiste's nickname was "Toodie." The following colloquy took place regarding names mentioned by the current victim in his interview:

Q. Okay. Now, returning back to your interview with Mr. Bradford Jacob[s]. In that interview did he indicate that one of the gunmen was referring to the other as "Toodie" or "Tootie"?
A. He mentioned a "Toodie."
Q. Uh-huh. He also did mention the name Anthony Batiste?
A. I don't recall right off if he did or not, sir.

         On re-direct, the State asked Sergeant Fondel how he put aside other suspects and focused on Defendant. Sergeant Fondel answered:

Due to evidence that was submitted to the lab regarding [] witnesses, the two witnesses that was [sic] in the residence at the time of this incident. That evidence was sent to the lab, and once DNA was obtained Mr. Batiste along with Joshua Plumber was [sic] excluded from this investigation.

         Sergeant Fondel concluded by stating that no evidence was recovered in his investigation of this matter that pointed to either Mr. Plummer or Mr. Batiste.

         Jordan Ashworth, a crime scene technician for the Lake Charles Police Department, testified that Sergeant Fondel requested her presence at the scene of the incident. She collected five 380 shell casings at the scene and later a projectile that was removed from Defendant at the hospital. Ms. Ashworth identified Defendant as the person from whom the projectile was removed and State's Exhibit 42 as the projectile taken from Defendant's leg.

         Tammy Vincent, a registered nurse at Lake Charles Memorial Hospital briefly testified at trial to identify a vial of blood collected from Defendant on June 26, 2012, for purposes of DNA analysis. Monica Quaal, the DNA technical leader of the Southwest Louisiana Crime Laboratory in Lake Charles, Louisiana, was accepted as an expert in DNA analysis. Ms. Quaal stated that she received a black ski mask, a set of gloves, and a separate glove. On the black ski mask and set of gloves, Ms. Quaal found nothing relating to Defendant. On the separate glove found on the victim's bathroom floor, however, Ms. Quaal found a mixture of DNA from at least two people. She explained that she found skin cells, or contact DNA, left from contact with that glove. When Ms. Quaal compared the contact DNA found in the glove with a reference sample from Defendant, she could not exclude Defendant from being a contributor. Ms. Quaal testified that she could exclude 99.9999992 percent of the Caucasian population, 99.999996 percent of the African American population, and 99.999997 percent of the Hispanic population. She was able to affirmatively exclude the victim as a contributor to the DNA found inside the separate glove.

         On cross-examination, Ms. Quaal testified that she had reference samples from Defendant, the victim, and Mr. Daugherty but not from Mr. Batiste or Mr. Plummer. She agreed that she did not know who the other DNA belonged to and could not exclude either Mr. Batiste or Mr. Plummer because she did not have reference samples from them. On re-direct, Ms. Quaal explained that the inside of a glove is a good place to find DNA since a person's skin cells will be scratched off during movement.

         Charles Watson, Jr., a forensic scientist with the La. Crime Lab was accepted as an expert in firearms examination. Mr. Watson was provided with five 380 caliber cartridge cases and one bullet in connection with this matter. He stated that the five cartridges did not have enough detail to determine whether they were fired from the same firearm. While the bullet provided to him was a "380 auto caliber, " Mr. Watson was unable to say that the bullet came from one of the casings found at the scene. On cross-examination, Mr. Watson stated that the five cartridges were made by three different manufacturers.

         Dr. Richard Shimer, a staff surgeon at Lake Charles Memorial Hospital, testified as an expert in general surgery. Dr. Shimer treated the victim for the gunshot wound he received in this incident. Over defense counsel's objection, Dr. Shimer was allowed to review and testify regarding a report prepared by a Dr. Gray, the physician who removed that bullet from Defendant's leg. Dr. Shimer testified that the bullet entered Defendant's leg above his knee and did not exit. When asked about the trajectory of the bullet, Dr. Shimer stated that he could not say whether or not the bullet was shot from above. On cross-examination, Dr. Shimer agreed he was not an expert in ballistics.

         Cristin Kibodeaux testified that the victim called her on October 18, 2011, asking her to pick up some cigarettes and alcoholic beverages for him because he had been drinking all day and did not want to drive. As she walked toward the victim's apartment around 9:00 p.m., she saw two men standing outside in the backyard. Both men were wearing dark clothing and jackets with hoods. She described one as short and one as tall, estimating that the tall man was 6'0" to 6'1" and the short man was 5'4" to 5'5". Ms. Kibodeaux stated that the two men were "black guys, " the taller one being darker and the shorter one being lighter skinned. When Ms. Kibodeaux walked into the apartment, the victim and someone named Greg was there. At some point after she arrived, Ms. Kibodeaux turned around to see two men wearing masks and gloves standing in the kitchen next to the victim. The shorter man had a handgun pointed at the victim. When the taller man held up a handgun, the victim turned, and the shorter man hit the victim in the head with his gun. Ms. Kibodeaux screamed, put her hands over her face, and started backing away from them. She stated she did not want to look at the two men because she did not want to see their faces. The men asked the victim, "Where's the money? Give us money, " and the victim told them he did not have any money. The men shouted for someone to turn the television volume up loud and demanded that the victim take off his clothes. The victim refused and began fighting with the shorter man. Ms. Kibodeaux heard the shorter man tell the tall man, "Man, E.O, E.Z" or something along those lines. As she ran out of the apartment, she heard two gunshots. As she reached the second door to exit the building, she heard two or three more shots. Ms. Kibodeaux then ran toward a nearby house and banged on the door saying, "Please help me." When the couple inside cracked the door open, Ms. Kibodeaux told them, "Please call 911. There's two men with guns. I believe they shot my friend. Please help." Thereafter, the couple shut the door in her face so she hid on their porch. Soon the two assailants came walking toward her. She described the men's behavior as odd, stating:

A. Yeah, I mean, they were - - they were walking very calm, casual. They weren't fleeing the scene. They weren't running. They weren't looking around nervously. They were walking, afternoon stroll, and went up the street. As soon as I see them, you know, I remember being flabbergasted at first at how they were leaving the scene so nonchalantly, but I ducked back down after I saw them walking. I ducked down hoping they wouldn't see me.
I hear a noise, and I remember taking mental note, I was saying to myself this is when you need to try to get mental notes of what they look like or what they're doing. So, as I heard a noise I was trying to get a mental note of what it was.

. . . .

Q. What did the noise sound like?
A. It sounded like a lid being slammed. It sounded to me like a trash can lid or something like that being slammed, you know, because I have the big bin trash cans at my house and I'll open it, you know, and when I'm done, boom.
. . . .
A. Because after I heard it and looked back up I noticed a dumpster, not a trash can sitting on the road. I noticed a dumpster in a front yard, as if the house were being renovated, you know, and I said right then that's what that noise was, that dumpster. So, as soon as I saw the police officers I said, "You need to check that dumpster. I heard that dumpster. I believe they put something in the dumpster. You need to check that dumpster."

         Once Ms. Kibodeaux saw the intruders leave, she went back to the apartment and found the victim lying on the floor with a gunshot wound. When she went to the kitchen to get a rag, Ms. Kibodeaux noticed her car keys were missing.[8] A few minutes later, she heard sirens. When the police officers arrived, she told them that the men had driven off toward 12th Street in what she believed was a "white Lumina." On cross-examination, Ms. Kibodeaux stated that she did not know which one of the two men fired any of the gunshots. She did not recall either of the two men limping as they were walking away after the incident, but she clarified that she could not see their feet.

         Sergeant Fondel was recalled as a witness and was asked about several photographs marked as State's Exhibits, 47, 48, and 49 which were images of the victim's kitchen counter. Sergeant Fondel identified items in the photographs, including a bag with a pack of cigarettes and a bottle of beer, a scale, and a plastic bag containing powder residue. He then testified regarding State's Exhibit 50, a photograph of a loveseat in the victim's living room upon which there were several items that had been removed from the victim's pocket: a large amount of U.S. paper currency, a cell phone, and a brown medicine bottle containing what appeared to be rocks of cocaine. According to Sergeant Fondel, the victim admitted to owning the cocaine in the brown bottle. On cross-examination, defense counsel questioned Sergeant Fondel about Mr. Plummer. The defense then introduced a document which Sergeant Fondel identified as showing that Mr. Plummer had been sentenced to twenty years after being convicted of home invasion. On re-direct, Sergeant Fondel explained that he had arrested Mr. Plummer on August 24, 2012, on a matter unrelated to his investigation of Defendant or Mr. Daugherty regarding the shooting of Bradford Jacobs, the victim in this matter.

         The victim was the next witness to testify. He stated that on the day of the incident, he had played video games with Mr. Plummer at his apartment from about noon until 8:00 p.m. He explained that he had known Mr. Plummer for approximately thirteen years. After Mr. Plummer left the victim's apartment, the victim's friend, Gregory Jones remained, and a short time later, Ms. Kibodeaux, arrived. The victim and Ms. Kibodeaux were talking at the counter when two guys wearing masks and gloves walked in with guns. The two men brought the victim to his bed and asked him where his money was. When asked if he recognized Mr. Plummer's voice, the victim replied:

A. Right and neither one of them could possibly be Josh because Short was two inches shorter than me and Josh is two inches taller than me and Tall is too tall to be Josh and he's also dark skinned.
Q. So I want to clarify for the Jury. When you talked about Short and you talked about Dark, you're talking about the two guys in the masks, right?
A. Right.
Q. Because you couldn't see their faces.
A. No. I couldn't see their faces. On Short you could see underneath his neck right here and that's how I knew he was light-skinned and also he had his sleeves rolled up so I knew he was light-skinned; and Dark, I could tell under his eyes with his mask and by his mouth he was brown skinned like me.
Q. So Short and Dark, they didn't even match the physical description of Josh?
A. No, sir.
Q. Did they sound like Josh?
A. No, sir.

         When asked if he knew what money the intruders were talking about, the victim stated he had no idea, but he guessed they may have been talking about the money Mr. Plummer knew the victim was going to use to buy rims for his truck. The victim stated that he had approximately $4, 000.00 in his apartment which he had received from Entergy for a power outage that had damaged some of his appliances. The victim admitted that he had been drinking and had smoked some marijuana on the day of the incident.

When asked to describe the incident, the victim stated:
A. The guy sat me on the bed. Once again he asked where the money was. I told him I didn't have any money. So he taps me on top of the head with the gun. And I told him don't do that again. Don't hit me with the gun again. So he went to do it - - well, before that he asked me to take off my clothes. And I said no, I'm not taking off my clothes either. So like I said, he went to hit me with the gun again and I just started fighting him, beating him. I walked him all the way to the kitchen because my house went living room, kitchen and bathroom. So I just punched him all the way to the tub.
Q. So you started fighting back?
A. Right.
. . . .
Q. What happens once you get to the bathroom?
A. I leaves[sic] him in the tub and he's hollering.
Q. What do you mean you leave him in the tub? You pushed him into the tub?
A. I punched him in the tub; I pushed him in the tub, so he's hollering to the back door. I don't know what he was hollering, but I see somebody come into the back door. I went to hit him twice. I think I connected once and then I got shot. I heard pow pow and got shot. I hit the floor like all the life came out of me. While I was on the floor I hear cling, cling outside and I didn't know what that was. So two or three days later after waking up at the hospital I realized that one of the guys shot himself and I see the pictures that you had, so I put two and two together and he must have tripped over the - -
MR. FLAMMANG:
I'm going to have to object. This is speculation.
THE COURT:
It is.
Q. Let me ask you this way, Brad: you said you heard clink, clink?
A. Right.
Q. This clink, clink sound, this was after the shots were fired?
A. Yes. This is when I was on the ground.
Q. So after you were on the ground you hear clink, clink. What did you think that clink, clink sound was at the time?
. . . .
A. I didn't have no idea at that time.

(Alteration in the original). The victim then explained that the back door leading from his bathroom connected to the back porch where a weight bench was located. When asked if he could give any specific information about what "Tall dark, " did that night, the victim replied:

I can't say anything really about Tall dark, but he was there because Short had me in the front with the gun saying everything, pointing the gun to my head, telling me [to] take all my clothes off and trying to get me to take all my clothes off. I really didn't see Tall until the end.

         At that point, the victim heard "Short" holler something, and "Tall" came in. After the victim tried to hit "Tall, " he heard two gunshots. The victim stated that in his statement to police, he mentioned the name "Anthony Batiste" because that was the name "surfacing around" on the street.

         On cross-examination, the victim admitted he originally told police that he pulled the bottle of crack cocaine out of the pocket of Anthony Batiste during the struggle. He explained that originally he was afraid "they was [sic] going to try to make this out of a drug case, " but he eventually recanted that statement. According to the victim, he used the scale found in his apartment to weigh cocaine for personal use and to make sure he was not shorted when he purchased marijuana. After his memory was refreshed with a prior statement he made to Sergeant Fondel, the victim remembered telling him that the gunmen were not wearing gloves. When asked if he told Sergeant Fondel that one of the gunmen was calling the other one "Tooty, Tuchi, [or] Tooty, " the victim responded:

A. A friend of mine, Greg Jones that was there, that's what he said he was hollering out.
Q. But do you remember?
A. I don't recall saying that to Mr. Fondel, but I might have but that's what my friend, Greg, said they were saying.

         On re-direct, the victim testified that his memory was good at the time he spoke with Sergeant Fondel on November 30, 2011, but that he was in a wheelchair due to injuries caused by the gunshot he received, and he was on doctor-prescribed medication at the time. The State asked the victim the following:

Q. Brad, if they weren't wearing gloves[, ] do you remember seeing their hands?
A. Yes, sir. I don't recall them having gloves on. I remember seeing Short's, like I said, his sleeve was pulled up. That's how I know he was bright, and you could see all under his neck area. That's how I knew it was bright. And then Tall was dark because you could see in his mask around his eyes that he was dark like me; and also I could see under his neck that he was dark like me.

         The victim testified that he could see the gunmen's wrist area.

         Defendant's ...


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