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State v. Saulny

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

STATE OF LOUISIANA
v.
DANNY D. SAULNY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-2891, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

          COUNSEL FOR DEFENDANT/APPELLANT, DANNY D. SAULNY Bruce G. Whittaker

          Panel composed of Susan M. Chehardy, Robert A. Chaisson, and Robert M. Murphy.

         CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDERS

         SMC

         RAC

         RMM

          SUSAN M. CHEHARDY CHIEF JUDGE

         On appeal, defendant challenges his convictions for attempted second degree murder, felon in possession of a firearm, and home invasion. For the following reasons, we affirm defendant's convictions and sentences but remand for correction of the uniform commitment orders.

         Procedural history

         On June 5, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Danny D. Saulny, with the attempted second degree murder of Erica Poret, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. On March 2, 2015, the State filed a superseding bill of information charging defendant with the attempted second degree murder of Erica Poret, in violation of La. R.S. 14:30.1 and La. R.S. 14:27; possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1; and home invasion, in violation of La. R.S. 14:62.8.

         On June 21, 22, and 23, 2016, the case was tried before a twelve-person jury, which found defendant guilty as charged. On July 18, 2016, the trial judge sentenced defendant, for attempted second degree murder, to fifty years at hard labor without benefit of parole, probation, or suspension of sentence; for possession of a firearm by a convicted felon, twenty years at hard labor without benefit of parole, probation, or suspension of sentence; and, for home invasion, twenty-five years at hard labor, to all run concurrently.

         On September 16, 2016, the State filed a bill of information alleging that defendant was a second felony offender. After a hearing that day, the trial judge found that the State had presented sufficient proof that defendant was a second felony offender. The trial judge vacated the original sentence for attempted second degree murder and imposed an enhanced sentence of seventy-five years at hard labor, without benefit of probation or suspension of sentence, to run concurrently with the sentences on counts two and three. Defendant verbally moved to appeal.

         Facts

         At trial, Erica Poret testified that, in January of 2014, she was living with her cousin's family at 117 Madeira Drive in Avondale. On the night of January 13, 2014, she was cooking dinner in the kitchen when two armed African-American men kicked in the locked front door and entered the apartment. Ms. Poret recognized one of the men as "Noonie, " who she had known for many years, since they were in grade school together. Noonie was later identified as defendant-herein.

         Ms. Poret recalled that, after the men entered, defendant said, "b*tch, come here and give me everything you got." When she reached defendant, he threw her onto the ground then dragged her by her hair toward the kitchen as the other man kicked her. After more physical abuse, the intruders dragged her down the hallway into a bedroom. Defendant again demanded "everything she had, " so Ms. Poret gave him a wallet she found in the dresser drawer. Defendant told his accomplice to shoot Ms. Poret then defendant himself shot Ms. Poret in her right cheek.

         Ms. Poret recalled that, defendant and the other man kept shooting her. Ms. Poret tried to fight but had sustained several gunshot wounds. She heard defendant pull the trigger again, but nothing came out. Ms. Poret testified that she could not move and that she heard defendant say, "I think she is dead let's go." After she heard them leave, she stood up, stumbled, and ran as best as she could to her neighbor's house. Ms. Poret recalled walking into her neighbor's house then collapsing. When the neighbors asked her to name the shooter, she told them "Noonie" several times. At trial, Ms. Poret testified that she was "a million percent certain" that defendant was one of the two individuals that shot her on January 13, 2014.

         Cory Poche, who was a deputy with the Jefferson Parish Sheriff's Office ("JPSO") on January 13, 2014, responded to a call for service at 133 Madeira Drive. Deputy Poche testified that he was advised there was a female bleeding from the mouth and dying there. When he approached the front door, he noticed there was a blood trail from the front door leading through the house to the victim in the hallway. Deputy Poche testified that the victim had multiple gunshot wounds and blood all over her, and she was in and out of consciousness. Once the medical personnel arrived and stabilized the victim, he was able to talk to her. While in the ambulance, he asked Ms. Poret who shot her and she mumbled the name "Noonie, " which he heard clearly. While on the scene, he learned that the shooting had occurred at 117 Madeira, which was about four houses down on the same side of the street.

         Dr. Alan Marr, a trauma surgeon at University Hospital, was qualified as an expert in the field of trauma, surgical, and critical care. Dr. Marr testified that he treated Ms. Poret when she came into the emergency room at University Hospital. He recalled that she had sustained multiple ballistic wounds to multiple areas of her body, including her face, neck, chest, and extremities.[1] He explained that she had internal injuries from the gunshot wounds, including injuries to her hypopharynx where the esophagus started and to her carotid artery, the main artery bringing blood to the brain. Dr. Marr asserted that the victim underwent multiple surgeries by him, a vascular surgeon, and a specialist in facial reconstruction. He testified that initially she was not able to walk, talk, or eat on her own, and, during that long period of recovery, he saw her daily while she was at the hospital. He described her wounds as "horrible and life threatening" and thought she was a "severely traumatized individual."

         In January of 2014, Deputy Gerald Favaloro of JPSO was assigned to the "shoot squad, " which investigates non-homicide shootings. On January 13, 2014, he responded to a call for service at 133 Madeira Drive involving a shooting and assumed responsibility for the investigation as a detective of the "shoot squad." Deputy Favaloro learned that the shooting occurred at 117 Madeira so he instructed Crime Scene to collect evidence and photograph the scenes at both addresses. Deputy Favaloro's team found casings and a projectile in a bedroom.

         Deputy Favaloro learned that the suspect had the nickname of "Noonie" and, through investigation, learned that an individual with that nickname lived in the Avondale area. A photographic lineup with that individual's picture was compiled. On January 30, 2014, Deputy Favaloro showed the lineup to the victim, and she positively identified defendant as the perpetrator. He also collected a letter that the victim wrote describing the incident and identifying "Noonie" as the shooter. Afterward, Deputy Favaloro obtained an arrest warrant for defendant. In April of 2014, defendant was arrested in Texas and extradited to Jefferson Parish.

         Jené Rauch, the Supervisor of the Firearm and Tool Mark Section of the Jefferson Parish Crime Lab, was qualified as an expert in the field of firearm examination and identification. Ms. Rauch reviewed eight 9-mm caliber fired cartridge casings and two projectiles connected with this incident.[2] Ms. Rauch testified that, based on the markings, all of the casings were fired from the same weapon. Further, both copper-jacketed projectiles were fired from the same weapon. Moreover, both projectiles were consistent with .38-class ammunition, and were marked with six lands and grooves with a right twist. No firearm was recovered in this case.

         After hearing the testimony and reviewing the evidence, the twelve-person jury found that defendant was guilty of attempted second degree murder, being a ...


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