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State v. Lee

Court of Appeals of Louisiana, Fourth Circuit

April 26, 2017

STATE OF LOUISIANA
v.
JOSHUA I. LEE

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 500-034, SECTION "K" Honorable Arthur Hunter, Judge

         Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Mithun Kamath ASSISTANT DISTRICT ATTORNEYS

          COUNSEL FOR APPELLE/STATE OF LOUISIANA Mary Constance Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Regina Bartholomew-Woods, Judge

         On September 2, 2010, Joshua I. Lee ("Defendant") and his brother, co-defendant Christopher Lee, Sr. ("co-defendant"), were charged by grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1, attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27; and aggravated burglary, in violation of La. R.S. 14:60. On October 1, 2013, co-defendant, through counsel, requested a severance, which the trial court granted. Defendant's separate jury trial commenced on May 18, 2015, and concluded on May 22, 2015, with a verdict of guilty on all counts. Defendant waived sentencing delays, and the court imposed sentence on June 23, 2015. Defendant received twenty years in the Department of Corrections with credit for time served on his aggravated burglary conviction; twenty-five years in the Department of Corrections without benefit of parole, probation, or suspension of sentence on his attempted second degree murder conviction; and life in the Department of Corrections without benefit of parole, probation, or suspension of sentence on his second degree murder conviction. All sentences were ordered to run concurrently.

         Defendant now timely appeals, alleging two assignments of error. For the reasons that follow, we affirm.

         FACTUAL BACKGROUND

         Defendant's charges arose from the burglary of Chad Huth's home on Cameron Boulevard in Gentilly, New Orleans, resulting in Mr. Huth's death and injury to Christopher Wells.

         Paul Patin, a friend, testified that at the time of the incident he had been living with Mr. Huth at Mr. Huth's residence. In the early morning hours of April 22, 2010, Mr. Patin was watching television in the living room with Mr. Huth and two of their friends, Antar Breaux and Christopher Wells. Mr. Patin stated there was a knock on the door. When Mr. Patin opened the door, he saw a group of possibly six men he did not recognize. Mr. Patin tried to close the door, but the men began to force the door open, breaking the doorjamb. At that point he heard a gunshot. Mr. Patin testified that he slid to the floor as the door was forced open, but was able to crawl to his room. He locked his bedroom door and began to look for his gun, but could not find it. He then jumped out the window and hid under his neighbor's house, hearing multiple gunshots as he was hiding. He remained there until he heard Mr. Wells screaming. He testified that he left his hiding place and entered the house from the back. As he walked through his house to the front, he saw blood. Mr. Patin walked out the front door and found Mr. Wells crying in front of a neighbor's house. He stated that the police began to arrive at that time.

         Mr. Patin spoke with New Orleans Police Detective Ryan Aucoin and gave a recorded statement. He also assisted a member of the New Orleans Police Department ("NOPD") compile a sketch of two of the perpetrators. The NOPD showed Mr. Patin three lineups, and he made an identification in two of the lineups, identifying both Defendant and co-defendant. Mr. Patin also made an in-court identification of Joshua Lee as one of the men he saw on the porch on the night of the incident.

         Christopher Wells testified he would routinely go directly from work in Hammond to Mr. Huth's home. Mr. Wells stated Mr. Huth was like a brother to him. He was at Mr. Huth's house watching television with him, Paul Patin, and Antar Breaux on the night of the incident. They were expecting some other friends, so when they heard a knock at the door, Mr. Patin went to the door and cracked it open to look out. Mr. Wells explained that, as the door was opened, a group of possibly five men barged into the house. He saw Mr. Breaux immediately run out the back door; simultaneously, Mr. Huth got up from the sofa and began to move away from the door.

         Mr. Wells stated when he heard the first gunshot, he ran toward Mr. Huth's room. As he was running, he looked back and saw more shots being fired in the direction Mr. Huth was running. While in Mr. Huth's room, he began looking for Mr. Huth's gun but was unable to find it, so he hid behind the door. Eventually, an individual grabbed him and brought him into the living room area of the house. As he was approaching the living room from the hallway, he saw shots being fired in the direction of the bathroom located in the back of the house.

         Mr. Wells testified that the men brought him into the hallway in front of the locked door of Mr. Patin's room, but he refused their demand to open it. He stated that one of the men kicked the door open, which revealed that the room was empty. One of the men, wearing dreadlocks, asked him where the money was kept, and Mr. Wells pointed to the dresser. Mr. Wells testified that the other man, who he later identified as Joshua Lee, put him up against the wall, put a gun to his head, and pulled the trigger, but the gun jammed and did not fire. Mr. Wells stated that he moved toward the middle of the room, and the man with dreadlocks fired the gun at him multiple times.

         Mr. Wells testified that he sustained significant graze wounds to his chest and shoulder, as well as a through-and-through wound to his arm, causing a loss of a great deal of blood. After the perpetrators fled the scene, he locked the front door and began to look for his cell phone to call for help, but he could not find it. He beat on the locked door of the bathroom but there was no response. Mr. Wells then left the house and went to knock on his neighbor's door, but no one answered. He stated that he subsequently went back into Mr. Huth's house but was still unable to find either his phone or Mr. Huth, so he went back outside and tried a different neighbor, who was already calling 911.

         Mr. Wells later learned that Mr. Huth had been killed. He went to the NOPD homicide office and gave a statement after being released from the hospital. Detective Aucoin showed him photographic lineups, but he was unable to identify anyone. However, after the arrest warrants were issued for Joshua and Christopher Lee, he informed the police that he was "100 percent certain" the two suspects were the perpetrators. Mr. Wells made an in-court identification of Joshua Lee, describing him as the short-haired individual who held a gun to his head. On cross-examination, Mr. Wells acknowledged that, on the night of the incident, when he was interviewed in the hospital, he had not told the police one of the men put a gun to his head.

         Antar Breaux testified he knew Mr. Huth and Mr. Wells through his friend, Mr. Patin. He stated he was at Mr. Huth's house on the evening of the incident watching television with them. He similarly explained that Mr. Patin went to answer a knock at the door, and that Mr. Patin tried to close it but he was receiving resistance from someone pushing back on the door. He realized someone was trying to kick the door down, and when it started to crack, he ran out of the back door of the house. Mr. Breaux heard one gunshot as he was running out and another after he was out of the house. He ran to Elysian Fields Avenue and collected himself for a moment, then returned to the scene, where he saw Mr. Wells clutching his shoulder and knocking on the neighbor's door. Mr. Patin was also outside the house, and emergency services and the police arrived soon thereafter. When a police officer asked him if he was "attached to the scene, " he told the officer he was not. He explained he was afraid and "did not want to be a part of it, " so he got in his car and left. Mr. Breaux was later contacted by the NOPD. The police had found his phone at the scene and used it to locate him. Mr. Breaux gave a recorded statement to Detective Aucoin, telling him he did not see any of the assailants because he had quickly run out of the house. Mr. Breaux also acknowledged on the stand that he had been arrested on a material witness bond in North Carolina.

         Detective Aucoin of the NOPD homicide division testified that he was the lead investigator on the case. He explained the fire department had to remove the door to the bathroom where Mr. Huth's body was found, and that the police found ballistic evidence in the residence. Detective Aucoin explained Mr. Huth suffered a through-and-through gunshot wound and that the projectile lodged in the wall in the living room. He stated it was a 9-millimeter caliber projectile, and that there was a copious amount of blood in the bathroom where Mr. Huth's body was found. The police also found projectiles that had been fired from a .40-caliber handgun in Mr. Patin's room where Mr. Wells had been shot multiple times. He interviewed all three of the surviving victims, noting that Paul Patin and Christopher Wells gave consistent physical descriptions of two of the perpetrators.

         Detective Aucoin learned Mr. Wells' phone was in the house at the time of the incident, and that the phone was still in use, but with a different SIM card. The card was traced through subscriber information to Joshua Lee. The detective obtained a warrant to search the Algiers home on Hendee Street where Joshua Lee lived with his family, including his younger brother, L.L.[1] After executing the warrant, the police recovered three firearms, all from L.L.'s bedroom, one of which was found under L.L.'s bed. The gun was a black semiautomatic Makarov brand handgun. L.L. was in the residence at the time the search warrant was executed, but Joshua Lee was not. L.L., who was sixteen years old at the time, was arrested for possession of a firearm by a juvenile after he admitted ownership of one of the guns. He did not admit to owning the Makarov, however.

         Detective Aucoin compiled the various photographic lineups with Joshua Lee, Christopher Lee, and L.L., after executing the warrant. The photographic lineups were shown to Mr. Patin and Mr. Wells. Mr. Patin identified both Joshua and Christopher Lee from the lineups. Mr. Wells was unable to make any identification from the photographic lineups.

         Detective Aucoin subsequently obtained arrest warrants for Joshua and Christopher Lee, and both were apprehended a couple of weeks later. The detective testified that the firearms discovered at Mr. Huth's home were a 9-millimeter and a .380-caliber. Both guns were tested and found not to match any of the ballistics evidence found at the scene. On cross-examination, Det. Aucoin admitted the coroner wrote the bullet that went through the body of Mr. Huth was possibly a .40-caliber.

         Dr. Cynthia Gardner testified that she performed the autopsy on Chad Huth. She explained Mr. Huth's death occurred as a result of a single perforating gunshot wound to his back which injured his ribs, lungs and his heart. She stated that the bullet went through him and was of an unknown caliber.

         L.L. testified that he did not remember telling the homicide detective in a recorded statement that the Makarov handgun found in his room belonged to his brother Joshua Lee. The State then played L.L.'s recorded statement. On cross-examination, L.L. claimed he simply told the detective whatever he wanted him to say, and that he had no knowledge of how the Makarov handgun came to be in his room. He stated he had not seen Defendant carrying the weapon around. On redirect, L.L. said the whole statement he gave to police was a lie. L.L. acknowledged he had a second degree murder charge pending against him stemming from an unrelated incident. He stated that he did not know what kind of cell phone his brother Joshua Lee used or whether he shared the cell phone with his other brother Christopher Lee. L.L. also explained that "Keyshawn" was the name of Christopher Lee's "baby's mama."

         Loretta May of the AT&T National Compliance Center testified that she is an analyst and legal custodian of records. AT&T received a subpoena for phone records from the State and the subpoenaed records were provided. She explained that a SIM card stores the customer's phone number, text messages and other data, and that Mr. Wells was the recorded user of the physical phone registered with AT&T. Mr. Well's SIM card was last used in the physical phone on April 22, 2010, at 1:38 a.m. She stated that a new SIM card registered to a Keyshawn Sterling was placed in the phone on April 22, 2010, at 10:18 a.m. and that a single call was made using that SIM card. Ms. May testified a SIM card registered to Joshua Lee was placed in the phone and numerous calls were made using that SIM card. She further testified the SIM card registered to Joshua Lee was associated with an address on Hendee Street and that the SIM card under Joshua Lee's name was placed in different physical equipment on April 27, 2010, then moved into the equipment originally associated with the account on June 3, 2010.

         Byron Winbush testified next, explaining he was employed by the NOPD Crime Lab in 2010. He was admitted as an expert in the field of firearm examination over the objection of the defense. Mr. Winbush testified that based on his observations of markings on a cartridge casing and projectile recovered from the scene, he was of the opinion that it was fired from the 9-millimeter Makarov handgun recovered by the NOPD from L.L.'s bedroom at the home on Hendee Street.

         For the defense, Katie Carter, a staff investigator for the Orleans Public Defenders Office, testified that she interviewed Joshua Lee as a possible witness in an unrelated murder trial in which Jamaal Tucker was the defendant. Ms. Carter stated that she was in constant contact with Joshua Lee on Tuesday, April 20, 2010, through Thursday, April 22, 2010, the day he testified in the Tucker case. She stated that on Wednesday, April 21, 2010, Joshua Lee spent the whole day in her office. She dropped him off at about six or seven o'clock that evening at his mother's house in the Fischer Housing Project on the West Bank. When she went to pick him up the next morning, Joshua Lee was not there. She stated that she left, and when she returned, Defendant was sitting on the porch. Defendant explained he had gone to get his State I.D. card or driver's license. She believed Defendant had the same phone with him every day. On cross-examination, Ms. Carter denied that her office was planning to use Joshua Lee as an alibi witness for Jamaal Tucker. She stated that Mr. Tucker was convicted, but the conviction was set aside on appeal due to prosecutorial misconduct. Mr. Tucker later pled guilty to manslaughter. Ms. Carter acknowledged that she was not near the Defendant between midnight and 1:00 a.m. on April 22, 2010.

         ERRORS PATENT

         A review for errors patent on the face of the record reveals none.

         ASSIGNMENTS OF ERROR

         Error in Not Excluding Firearms Evidence

         Defendant's first assignment of error asserts that the trial court erred in denying his motion to exclude the testimony of NOPD Crime Lab Firearms Examiner, Byron Winbush. Defendant suggests Mr. Winbush's testimony should have been excluded for its failure to satisfy the standard set in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

         Defendant filed a motion for a Daubert hearing to exclude firearm evidence on September 20, 2011. Defendant requested and was given permission to question the witness in front of the jury at trial rather than at a separate hearing. On March 23, 2012, Defendant's co-defendant similarly filed a motion to exclude Mr. Winbush's testimony, or, in the alternative, to limit the scope of such testimony. On May 30, 2013, a hearing was conducted by the trial court on co-defendant's Daubert motion. Defendant's trial counsel was present but did not participate in the Daubert hearing. Counsel instead reserved his questioning for trial before the jury, though counsel indicated he adopted the arguments of co-defendant's counsel. As to co-defendant's motion, the trial court ruled that the testimony and evidence regarding firearm examination would be allowed. The State ...


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