FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 500-034,
SECTION "K" Honorable Arthur Hunter, Judge
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods
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
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.
now timely appeals, alleging two assignments of error. For
the reasons that follow, we affirm.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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. 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.
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.
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
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.
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."
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.
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.
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.
review for errors patent on the face of the record reveals
in Not Excluding Firearms Evidence
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).
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 ...