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State v. Dyson

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

STATE OF LOUISIANA
v.
CORLIOUS C. DYSON AKA CORLIOUS CORALL DYSON

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 140554 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

          Keith A. Stutes, District Attorney Fifteenth Judicial District Cynthia K. Simon, Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Chad M. Ikerd Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Corlious C. Dyson

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges. [1]

          SHANNON J. GREMILLION JUDGE

         In the early morning of August 26, 2012, the victim, Clement Amos, encountered Defendant, Corlious C. Dyson, standing outside a neighbor's door. When Mr. Amos questioned Defendant as to what he was doing, Defendant shot the victim five times. Mr. Amos died as a result of the gunshot wounds.

         Defendant was indicted for the August 26, 2012 second degree murder of Clement Amos. A jury found Defendant guilty of second degree murder. Defendant filed a "Motion for a New Trial" and a "Post-Verdict Motion of Acquittal." Defendant also filed a "Motion to Allow Defendant to Proffer Testimony Excluded During Trial." The trial court denied the first two motions in open court. However, the trial court allowed Defendant to file the proffer into the record. The trial court sentenced Defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence. Thereafter, Defendant filed a "Motion for Reconsideration of Sentence, " which the trial court denied.

         Defendant appeals and alleges the evidence was insufficient to establish that he was the man who shot and killed the victim, and the trial court erred when it denied his oral motion for a mistrial and his written motion for a new trial based on erroneous evidentiary rulings and improper intervention by the trial court into the case. For the following reasons, we find there is no merit to either of Defendant's allegations of error. Accordingly, we affirm Defendant's conviction and sentence.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent. Additionally, the court minutes of sentencing require correction.

         First, the record before this court does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of Article 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. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

         Next, the court minutes of sentencing do not reflect that the trial court imposed Defendant's life sentence at hard labor as indicated in the transcript. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, the trial court is ordered to correct the sentencing minutes to reflect that Defendant's sentence is to be served at hard labor.

         SUFFICIENCY OF THE EVIDENCE

         Defendant asserts that the evidence presented to the jury was insufficient to sustain the verdict of second degree murder. Specifically, Defendant argues that since there was no eyewitness to the actual shooting, the evidence that he was the shooter was circumstantial. Defendant notes that the witnesses who identified him from a photographic lineup did not identify him as the shooter in court. Finally, Defendant argues that the DNA testimony was inconclusive and misleading in that the DNA analysis did not identify him as one of the mixed, partial DNA profiles found on evidence from the scene of the crime.

         In State v. Fields, 08-1223, pp. 6-7 (La.App. 4 Cir. 4/15/09), 10 So.3d 350, 354, writ denied, 09-1149 (La. 1/29/10), 25 So.3d 829, regarding the sufficiency of the evidence to identify the perpetrator, the fourth circuit stated:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Ragas, 98-0011, p. 13 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 106. The Jackson standard applies to all evidence, both direct and circumstantial, to test whether it is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 656, citing State v. Captville, 448 So.2d 676, 678 (La.1984). The reviewing court, however, is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992). Within the bounds of rationality, the trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Casey, 99-0023, p. 14 (La.1/26/00), 775 So.2d 1022, 1034. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id., citing State v. Mussall, 523 So.2d 1305 (La.1988).
When a conviction is based upon circumstantial evidence, La. R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright 445 So.2d 1198, 1201 (La.1984).
"When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden to establish every element of the crime charged beyond a reasonable doubt." State v. Weber, 02-0618, p. 11 (La.App. 4 Cir. 12/4/02), 834 So.2d 540, 549. See also State v. Edwards, 97-1797, pp. 12-14 (La.7/2/99), 750 So.2d 893, 902.

         In the current case, Defendant was convicted of second degree murder, which is defined in pertinent part as "the killing of a human being: 1) When the offender has a specific intent to kill or inflict great bodily harm[.]" La. R.S. 14:30.1(A)(1). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Furthermore, the supreme court has established that positive identification by one witness only is sufficient to support a conviction. State v. Weary, 03-3067, (La. 4/24/06), 931 So.2d 297, cert denied, 549 U.S. 1062, 127 S.Ct. 682 (2006). It is the finder of fact who weighs the respective credibilities of the witnesses, and an appellate court will generally not second-guess those determinations. State v. Bright, 98-398, p. 22 (La. 4/11/00), 776 So.2d 1134.

         At the trial, the following testimonies and evidence were submitted to the jury:

         Kelly Amos, the victim's wife, testified that they lived at 129 Hummingbird Lane in Lafayette, Louisiana. On August 26, 2012, Ms. Amos testified that she, her husband, and their three children arrived home from visiting Mr. Amos's parents at about 1:15 a.m. They found Jayde Lange, Sandra Harris, Carlos Omos, and Calisa Desselle sitting outside Ms. Harris's two story, four-plex apartment building. The Amoses' apartment was in a building across the street. They were told about someone snooping around the apartment buildings. They exchanged phone numbers. The Amoses stayed outside for about twenty minutes then went to their apartment and went to bed. At about 4:00 a.m., Ms. Lange called Ms. Amos and said there was someone at her door. The Amoses went outside, but they could not see anyone at Ms. Lange's second-floor apartment door. Mr. Amos went across the street and started up the stairs as Ms. Lange came out her door. Pointing to Ms. Desselle's door, which was across the second-floor walkway, Ms. Lange cried, "Look, there he is." Mr. Amos asked the man, "Hey, can I help you with anything?" The man replied, "No." Ms. Lange then started screaming, "You had been there for thirty minutes. I've seen you standing there." Ms. Amos stated that the man stepped out into the light and pointed a gun at her husband. She ran into the apartment to call the police and to get a gun that was in the apartment. While she was searching for the gun, she heard gunshots. She ran out of the house and found her husband lying on the ground. She testified she was not able to clearly see the man's face but said he was wearing a white tee shirt and red shorts.

         Ms. Desselle lived at 126 Hummingbird Lane on the second-floor of the apartment building in Apartment D. She testified that at about 10:00 p.m. on August 25, 2012, she was standing in her living room when she heard someone open the screen door of her apartment. Not knowing who it might be, she did not go to the door. Shortly thereafter, she heard the door close and steps walking away from her apartment door and going down the stairs. Ms. Desselle testified that she looked out her window and saw a man wearing a white tee shirt and red shorts. After the man left, she saw neighbors, Ms. Harris and her boyfriend, Mr. Omos, standing outside. She went out and asked them if they knew the man, but they did not. Ms. Desselle stayed outside talking to her neighbors. She said she also saw Ms. Amos and the victim arrive at their apartment across the street. At about midnight, Ms. Desselle said that she went back to her apartment and went to bed. She stated that at about 4:00 a.m., she was awakened by gunshots. She went outside and saw Ms. Amos crying over the body of her husband at the bottom of the stairs.

         Ms. Harris resided on the ground floor of the same apartment building as Ms. Desselle. Ms. Harris testified that on August 25, 2012, she and her boyfriend had gone outside that evening and were sitting in chairs below the second-floor walkway. She heard a screen door close upstairs and watched a man dressed in a white tee shirt and red shorts walk down the stairs. She greeted him, and the man responded, "What's up?" She stated she got a good look at his face. Ms. Harris said that he was a black male, tall, medium build, with short hair and gold front teeth. Ms. Harris stated that afterwards she spoke with both her neighbors, Ms. Desselle and Ms. Lange, about the man. She said that Ms. Lange had already spoken with her about a man hanging around the neighborhood in the early morning. Ms. Harris testified that she, Mr. Omos, and Ms. Lange and her boyfriend, Craig George, made a quick perusal around the apartment building, then sat outside talking until about 3:00 a.m. During this time, Ms. Amos and the victim arrived. Ms. Harris testified she and Mr. Omos went to bed around 3:45 a.m. Shortly thereafter, they heard shots. When they went outside, the victim was lying on the ground at the bottom of the stairs.

         On October 17, 2012, Ms. Harris identified Defendant from a photographic lineup. While Ms. Harris agreed that on the photographic lineup statement form, she wrote that the man she identified "looks the most like the person seen that day, " she testified that the person she identified, number two of the photographic lineup of six, was the person she saw walking down the stairs the morning of August 25, 2012.

         Ms. Lange testified that she lived at 126 Hummingbird Lane, Apartment C. She said that in the early morning of August 25, 2012, at approximately 4:00 a.m., she was sleeping in a recliner in her living room. Her boyfriend, Mr. George, and his two children were also sleeping in the apartment. She stated she was awakened by the squeak of her screen door being opened. She said she could tell someone was listening at the door. Then she heard a knock. Mr. George answered the door. Ms. Lange testified that she heard a man say that his car needed a boost. She said that Mr. George dressed and left the apartment with the man. Later, she heard someone on the porch outside her apartment and called the police. Later in the day, Ms. Lange stated that she saw a car with two people sitting in it. She was suspicious of the vehicle so she noted the license plate number on her phone. After the shooting, she told the police she thought the passenger in the car was the shooter and gave them the license plate number.

         Ms. Lange testified that on August 25, 2012, Ms. Harris knocked at her door and told her about seeing the strange man. Ms. Lange went outside and spoke with Ms. Harris, Mr. Omos, the Amoses, Ms. Desselle, and another neighbor about a person prowling around the apartments. They exchanged phone numbers and agreed to keep in touch. Ms. Lange stated that she stayed outside until approximately 2:30 to 3:00 a.m. talking with the neighbors and then went back into her apartment. She said that about 4:00 a.m., she heard someone walk up the stairs. She looked out her window and saw someone standing at Ms. Desselle's apartment door. Ms. Lange called Ms. Amos and told her the man was back on the porch. She also called the police again. Ms. Lange then saw the victim approach from across the street. The man was knocking on Ms. Desselle's door. Ms. Lange said that the victim walked up the stairs and asked the man if he could help him. The man said that his car needed a boost. Ms. Lange opened her door and told the victim that he was the same man who came to her door the evening before asking for a boost. She stated that the man asked who owned the gold car parked downstairs. She said she asked him '"[D]o you need a boost or you need the person that drives that car' and he was like 'who lives here?'" The man then pointed a gun at her. She ran inside her apartment and called the police. Within a minute, she heard several gunshots. She stated that the man who pointed the gun at her wore clearish, white gloves. He was dark skinned, had gold teeth, wore a white tee shirt and red shorts, and was of medium build. On October 17, 2012, Ms. Lange identified Defendant as the shooter from a photographic lineup.

         John Sullivan, a detective with the Lafayette Parish Sheriff's Office, led the investigation. He arrived on the scene at 5:08 a.m. He was first briefed by the witnesses. He was told by Ms. Harris that Ms. Lange had seen a vehicle, parked close to the apartment building, the morning before. Detective Sullivan was shown two plastic gloves that were located on the fourteenth and ninth steps leading down from the second floor of the apartment building. The gloves were collected as evidence. There was a similar plastic glove also collected as possible evidence found on a shrub a short distance away from the apartment. Detective Sullivan was given a description of the man seen on the building's second-floor walkway: slender black male, over six feet tall, dark complected, short hair, and gold front teeth.

         Detective Sullivan testified that he followed up on Ms. Lange's observation that the shooter may have been in a vehicle she saw in the vicinity; he determined that the owner of the vehicle lived in Abbeville. The owner's daughter, who lived in Morse, had possession of the car. The daughter and her boyfriend, Cody Boudreaux, were picked up and interviewed in Lafayette. Detective Sullivan stated that he received search warrants for the vehicle and their residence. It was determined that on the morning of the shooting, she and Mr. Boudreaux were riding around Abbeville and returned home around 3:00 or 4:00 a.m. Shortly thereafter, a friend called and asked for a ride to work. A surveillance camera installed at the friend's employment showed the vehicle dropping the friend off around 5:00 a.m. However, on August 26, 2012, Detective Sullivan had a photographic lineup prepared which included a picture of Mr. Boudreaux. Ms. Harris was shown the photographic lineup, but she did not identify any person in the lineup.

         Detective Sullivan testified that various potential suspects were looked at but eliminated. Then in October 2012, Detective Sullivan received a call from Claire Guidry with the Acadiana Criminalistics Laboratory (ACL) who informed him that the DNA profiles obtained from the gloves found on the apartment building's steps were entered in the "CODIS" system and a "hit" indicated Defendant as a potential contributor. Based on this information, Detective Sullivan prepared a photographic lineup which included Defendant. The lineup was shown to both Ms. Harris and Ms. Lange. Both women identified Defendant as the shooter.

         Dr. Christopher Tape, who worked for the Louisiana Forensic Center, performed the autopsy on the victim's body. He testified there were a total of five gunshot wounds to the victim's head and body. One gunshot entered the back top of the victim's head. The bullet from this wound was recovered from the victim's jaw. A second gunshot entered the victim's chin and exited the other side toward the back of the chin. A third gunshot entered the right, upper back. A fourth gunshot wound entered the right side of the victim's chest, and the fifth gunshot wound entered the upper right area of the victim's abdomen. Dr. Tape stated that the placement of the entry wounds indicated that either the gun was moving or the victim was moving, or both, at the time the shots were fired. Moreover, the gun was discharged from a distance of more than three feet from the victim.

         Ms. Guidry was qualified as an expert in the field of forensic DNA analysis. She worked for ACL and conducted the analysis of the DNA found in the three gloves recovered at the crime scene. Ms. Guidry testified that the analysis of the two gloves found on the apartment building's steps showed a mixed, partial DNA profile. She explained that there was more than one contributor to the DNA profile and only a partial DNA of each was revealed. The profiles from the three gloves were submitted to CODIS.[2] Of the gloves found on the ninth and the fourteenth steps, Ms. Guidry testified that CODIS made "hits" to Defendant. She explained that CODIS, a DNA data repository with the Federal Bureau of Investigations, contained a profile that had similarities or "association" with the two profiles ACL had submitted.

         Ms. Guidry contacted the police with this information on October 15, 2012. She received a reference DNA sample from Defendant. After analyzing the reference sample, Ms. Guidry concluded that she could not make an identification. She testified, however, that she could not exclude Defendant as a contributor. She explained:

[I]n calculations, we use a statistical program called "pop stats" which is created and developed by the FBI and uses a population database created by the FBI to generate statistics. With regards to item 1, approximately 99.999998% of the African Americans population would be excluded, or approximately one in fifty-nine million African Americans would be included as potential contributors. And what that means is that a random person - - a random unrelated person selected out of the population has a one in fifty-nine million chance of having their DNA profile not being excluded, or a 99.999998% of being excluded as a potential contributor. In addition, approximately 99.999994[%] of the Caucasian population would be excluded, or one - - approximately one in one hundred seventy-five million Caucasian would be included as potential contributors.

         Ms. Guidry explained that when making a comparison between the evidence profile and the reference profile, she tests "the DNA at sixteen different locations which each individually is called a "locus" and collectively called "loci", which one can think of in terms of a street address along a highway. A locus is a specific location on the DNA." Ms. Guidry went on to explain:

[T]he individual had alleles in common. An allele is basically a variant form of a gene similar to cars on [ ] the lot of a dealership where you have the same make and model of a car parked next to each other - one painted red, one painted blue. It's the same car, but you have a red version and a blue version. Same thing with alleles. It's different versions of the same gene. So, when comparing a reference sample - - an evidence sample and a reference sample, I look for similarities and difference among the alleles that are called at each of those locations in the DNA, the sixteen locations. So, for Item 2, there were eleven location where Corlious Dyson was completely observed in the mixed DNA profile.

         She further testified that for the other glove, item 1, there were fifteen locations where [Defendant's] alleles were completely observed in the mixture. However, Defendant was excluded from the mixed, partial DNA profile found in the glove located in the shrubbery.

         Dr. Ronald Acton, a microbiologist and immunologist, who was also qualified as a forensic DNA expert, testified on behalf of Defendant. Generally, Dr. Acton agreed with Ms. Guidry that Defendant could not be excluded as a contributor to the mixed, partial DNA profile found in one of the gloves found on the steps. However, he did testify that in a case when there are other individuals contributing DNA, the genetic markers or alleles presented in the results should be categorized either as an exclusion or as inconclusive for the reason that other individuals' DNA could leave alleles, which when mixed with DNA profiles of other subjects could provide the same results. While Dr. Acton found nothing wrong with the testing protocol of ACL, he noted that highest position Ms. Guidry could achieve with her Master of Science degree in any of his former laboratories would be supervisor. He also noted that ACL's director did not hold a Ph.D, who generally would be required to sign off on any testing results. However, he did not disagree with the results of ACL's testing which produced the profile of the mixed, partial DNA found in the two gloves or the results of the testing procedures which produced Defendant's DNA profile from the reference sample.

         Defendant argues in brief that the lack of an eyewitness to the shooting and the DNA testimony, which did not positively identify Defendant as a contributor to the mixed, partial DNA profile, were circumstantial evidence at best and were insufficient to sustain the verdict of second degree murder.

         While no one saw Defendant pull the trigger of the gun that killed the victim, Ms. Harris identified Defendant as the man she saw in the early evening of the shooting and Ms. Lange identified him as the man she saw just minutes before the shooting. Both witnesses identified Defendant from the photographic lineup as the man they saw then.

         Factors to consider in assessing the reliability of an identification include: 1) the witness's opportunity to view the perpetrator at the time of the crime, 2) the witness's degree of attention, 3) the accuracy of his or her prior description of the criminal, 4) the level of certainty demonstrated at the confrontation, and 5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243(1977). Ms. Desselle saw a man dressed the same as the man later identified as Defendant, in the late evening of August 25, 2012, as did Ms. Amos on the morning of August 26, 2012. Ms. Desselle stated that the man who stood at her door wore a white tee shirt and red shorts, and the man seen and described by Ms. Harris a minute later coming down the steps from the second-floor walkway on the evening of August 25, 2012, wore red shorts and a white tee shirt and had gold teeth. Ms. Harris testified she and Mr. Omos were sitting in chairs at the bottom of the steps. The steps ended right at her front door and her porch light was on. Ms. Lange saw Defendant with a gun as he stood on the second-floor walkway just minutes before Mr. Amos was shot. She testified that her front door light was on when she observed Defendant. She spoke with Defendant before he raised the gun. She observed that he was wearing a plastic glove like the ones found on the steps immediately after the shooting. After she ran back into her apartment, she heard pounding on the stairs, like someone running down the steps, then gunshots. Ms. Lange further testified that the man who pointed a gun at her wore a white tee shirt and red shorts and described him as having short hair and gold teeth. Furthermore, while Ms. Lange did not see the man who knocked at her door in the early morning of August 25, 2012, whose excuse for being at her door was that his car needed a boost, the man in the white tee shirt and red shorts on the walkway on the morning of August 26, 2012, made the same statement to the victim.

         On the photographic lineup form it was noted that Ms. Harris stated that Defendant "looks the most like the person seen that day." Defendant argues in brief that "[h]er testimony and statement written on the lineup form were not an identification of [Defendant] as the person she saw, rather she only indicated that [Defendant's] picture looked the most similar to the suspect, out of the six people in the lineup." When questioned about what the statement meant, Ms. Harris stated that it meant "[t]hat that's the person that I identified." Ms. Harris said that she did not guess when she made the identification because she was told not to guess by the detective.

         Defendant also argues that the two witnesses never identified Defendant in open court as the man seen on the second-floor walkway. Defendant argues that in State v. Ware, 06-1703, pp. 7-9 (La. 6/29/07), 959 So.2d 459, 463-64, n.1, the supreme court stated that when identification of a defendant is an issue, the test to negate misidentification presupposes that the defendant was identified at trial by the witnesses. In Ware, the supreme court noted that the witness did not give an in-court identification of the defendant as her assailant. However, she had testified that her former father-in-law was the assailant. The supreme court noted that the jury had the benefit of observing the witnesses and the defendant and could judge for themselves. The supreme court referred to State v. Stewart, 00-2960, p. 7 (La. 3/15/02), 815 So.2d 14, 17, which "cit[ed] 4 J. Wigmore, Evidence, § 1157 (Chadborne rev.1972) for the principle of autoptic preference, or things proved by the self-perception of the tribunal)." Ware, 959 So.2d at 463. We have not found any jurisprudence requiring an in-court identification of the defendant is a necessary element to negate an allegation of misidentification. In the current case, the jury had the benefit of seeing the photographic lineup which included Defendant's picture and Defendant sitting in the courtroom and observing Ms. Harris and Ms. Lange testify that they identified Defendant from his picture in the lineup.

         In brief, Defendant points out that neither Ms. Harris nor Ms. Lange testified they saw that Defendant had tattoos, which "[Defendant] clearly had in the photo[s.]" Detective Sullivan admitted that of all the persons he interviewed who saw the shooter during that time period, none indicated they noticed tattoos. Despite Defendant's assertion that tattoos were clearly discernible in the photographic lineup, the lineup photograph does not clearly show tattoos on Defendant's face or neck. The jury had the benefit of sitting in the courtroom for several days with Defendant. They could see whether Defendant had tattoos that could clearly distinguish him from someone with the same complexion but without tattoos.[3]

Finally, Defendant argues that concerning the DNA analysis:
The only absolute conclusion that can be reached in DNA analysis is that someone is "excluded" as a source, never that the person is "included." (R. at 367, 377, 380). Therefore, when a sample does not reveal the full DNA profile of a suspect, the evidence may not prove ...

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