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State v. Maize

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

STATE OF LOUISIANA
v.
JACOBY A. MAIZE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 11-2738, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, JACOBY A. MAIZE Jane L. Beebe

          DEFENDANT/APPELLANT, Jacoby A. Maize In Proper Person

          Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

         SJW

         SMC

         FHW

          STEPHEN J. WINDHORST JUDGE

         Defendant, Jacoby Maize, was found guilty of seven felony counts: second degree murder of Justin Hendricks, La. R.S. 14:30.1 (count one); aggravated second degree battery of Cecilia Cruz Maize, La. R.S. 14:34.7 (count two); two counts of possession of a firearm by a convicted felon, La. R.S. 14:95.1 (counts three and five); intimidation of a witness, namely Cecilia Cruz Maize, La. R.S. 14:129.1 (count four); aggravated arson, La. R.S. 14:51 (count six); and aggravated assault with a firearm of Cecilia Cruz Maize, La. R.S. 37.4 (count seven).[1]Defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence on count one; 15 years at hard labor on count two; 20 years at hard labor without the benefit of parole, probation, or suspension of sentence on count three; 40 years at hard labor on count four; 20 years at hard labor on count five; 20 years at hard labor on count six; and 10 years at hard labor on count seven. The trial court ordered that count two run consecutively to count one; count three run concurrently with count two, but consecutively to counts one, four, and five; counts four, five, and seven to run concurrently with all sentences; and count six to run consecutively to all counts. This appeal followed. For the reasons that follow, defendant's convictions are affirmed, his sentences on counts one through six are affirmed, his sentence on count seven is vacated, and the matter is remanded for resentencing on count seven and correction of the commitment.

         Facts

         One day in April 2011, around 4:00 A.M., Henry Linares was traveling with his friend on River Road, when he witnessed a house off of River Road on fire. They stopped, called the police and proceeded to knock on the doors of the houses in the area to alert them to the fire. The same day, in the early morning hours, Tito Guevara-Hernandez was sleeping on his mother's couch when he heard someone screaming. He went to the window and witnessed the house next door on fire.[2] He woke up his mother and sister and they hid in the bathroom when he heard a knock on his front door. They stayed in the bathroom until he saw lights from an emergency vehicle. Mr. Guevara-Hernandez stated he was sitting outside on his front porch the night before the fire when he heard "arguing, fighting" coming from the house next door. He then heard "two shots and somebody ran away." He stated that he hid in the bathroom with his family because he was afraid that someone was knocking on his door the day of the fire because of what he heard on his porch the night prior to the fire.

         On April 26, 2011, approximately 4:30 A.M., Detective Anthony Gaudet, an arson investigator with the Louisiana State Fire Marshal's Office, arrived at 112 Maine Street in Jefferson Parish to investigate a fire. He stated that the house was "basically, completely destroyed by the fire." The body of Justin Hendricks was found in the kitchen, with a visible gunshot wound to his pelvis area. The neighbor's home to the right was approximately fifteen to twenty feet away, and because of its close proximity, it also sustained damage from the fire that started at 112 Maine Street.

         Detective Gaudet determined that the fire was not accidental or caused by a natural event, and that there was evidence indicative of human intervention in causing the fire. He also determined that there were two points of origin and that gasoline was used as an accelerant. Detective Gaudet further established that the gas meter at 112 Maine Street did not fail, nor was it a source of the fire's origin. He testified that if the fire had reached the gas meter, an explosion would have occurred which potentially could have threatened the life of any of the individuals in the house next door. Investigator Thomas Lowe, an arson investigation supervisor with the Jefferson Parish Fire Department, [3] similarly determined that if the fire had reached the gas meter, the three people in the occupied residence next door "could have been seriously injured" because of a probable explosion. He concluded that the fire was intentionally set, and the fire was classified as an aggravated arson because it spread to the occupied residence next door.

         Dr. Susan Garcia, a forensic pathologist with the Jefferson Parish Forensic Center, performed the autopsy of Mr. Hendricks. She testified that he sustained a single, distant-range[4] gunshot wound to his left side, which severed his femoral artery. The gunshot wound was the cause of death and his death was classified as a homicide.[5] She also conducted a carbon monoxide level test to determine if the fire contributed to his death. Dr. Garcia concluded that Mr. Hendricks died before he was exposed to the fire.

         Dr. Garcia also testified that Mr. Hendricks had two sharp-force injuries to the ventral surface of his left forearm near his wrist.[6] She determined that these two wounds were made immediately before or after he sustained the gunshot wound. She further explained that wounds on extremities are usually classified as defensive wounds. While she could not say how Mr. Hendricks received those injuries, she stated that the wounds were in a position on his body consistent with defensive wounds.[7]

         Detective Rhonda Goff with the Jefferson Parish Sheriff's Office, was the supervising detective in the murder investigation of Mr. Hendricks. During the investigation, she discovered a 9-1-1 call that Mr. Hendricks made on April 25, 2011, at 1:23 A.M. Mr. Hendricks advised the 9-1-1 operator that defendant, Jacoby Maize, was at his home earlier that day and defendant beat his wife, Cecilia Cruz Maize (Ms. Cruz[8]) and struck her with a gun. Defendant and Ms. Cruz, subsequently left in a black Land Rover.

         On April 29, 2011, defendant and Ms. Cruz were arrested after patrol officers conducted a traffic stop on a black Land Rover. Defendant was initially arrested for an outstanding warrant with the New Orleans Police Department (NOPD) for an aggravated battery by shooting and Ms. Cruz was arrested on a probation violation.

         Detective Goff interviewed Ms. Cruz after she was arrested, and Ms. Cruz appeared "beat up." She had a blood-like substance on her clothes, and an "L-type shape" wound on her forehead, "consistent with the butt of a gun striking her on the forehead." As a result of Ms. Cruz's injuries, defendant was "booked" in Jefferson Parish with a felony count of domestic battery.

         Ms. Cruz characterized her relationship with defendant as "physical." Defendant beat her "everyday" and "it happened numerous times." He would beat her regardless of who was around and no one ever reported defendant to the police.[9] He used his hands and objects when he beat her. She recalled a specific occasion while she and defendant were living with Amanda Glynn.[10] Defendant stabbed her with a knife, resulting in a hospital visit.[11] She also recalled an incident at Joan Rhode's[12] home that occurred in April 2011 a few weeks before Mr. Hendricks' death, when defendant shot a gun at her. He was angry with her, but she did not remember why he was mad because she stated she did not do anything wrong. Defendant used to make her walk with her head down and she was not allowed to look at other people.

         Ms. Cruz met Mr. Hendricks through defendant. In April 2011, she and defendant were living in their vehicle, a black "Range Rover, " but it was impounded for lack of insurance. Mr. Hendricks helped her and defendant recover the vehicle by placing the vehicle on his insurance policy so they could retrieve their vehicle. She and defendant were at Mr. Hendricks' home on Easter Sunday, April 24, 2011. However, before they went to Mr. Hendricks' home, she and defendant picked up three of their friends, including Samer Abumusa, in New Orleans. She testified that because of her drug use, she was "asleep" for the entire ride in New Orleans.

         On the morning of April 24, 2011, Mr. Abumusa was with defendant in defendant's vehicle. Defendant was driving, Ms. Cruz was in the passenger seat, and he was in the backseat with Tiffany Frey and "Freddy." Mr. Abumusa got into an argument with defendant because Ms. Cruz said "hello" to him. Defendant pulled over and parked the car, turned around and shot Mr. Abumusa. Although he got out of the vehicle and tried to get away from defendant, he was struck by three bullets before he was hit by a truck.[13] Officer Angel Wilson with the NOPD responded to a call of an aggravated battery by shooting on April 24, 2011, at the intersection of Tchoupitoulas and Upperline at approximately 10:30 A.M. involving defendant and Mr. Abumusa. She recovered two casings as well as a copper bullet from the scene.[14]

         After the shooting involving Mr. Abumusa, Ms. Cruz and defendant went to Mr. Hendricks' home on the afternoon of April 24, 2011. Ms. Cruz testified that while at Mr. Hendricks' house, they had a physical fight wherein defendant beat her with a lamp, and "with everything that he could find in that house…for, at least, 30, 35 minutes." She cried and screamed and had injuries that bled as a result of the beating. After the fight, they left Mr. Hendricks' home.

         Andrea Romano, a friend of Mr. Hendricks, spoke with Mr. Hendricks twice over the phone on Easter, April 24, 2011, in the evening.[15] He told her that a man and woman were in his house earlier and they fought. The man "pistol-whipped" the woman with a gun stamped with "LCPD, " which he thought meant Lake Charles Police Department. He also told her that there was blood everywhere. Mr. Hendricks said that they broke a lamp and he was cleaning up the blood while he was talking to her. Out of concern for his safety, Ms. Romano inquired if Mr. Hendricks had a gun. He told her that he did not because he was on probation, but he asked her if she "would feel better if he brought a knife." She told him not to bring a knife to a gun fight. She subsequently spoke with Mr. Hendricks again on the phone and he told her that he was going to see the man later in the day because the man was bringing him money. Mr. Hendricks told her not to worry. Mr. Hendricks subsequently called 9-1-1 and reported the incident that occurred at his house between defendant and Ms. Cruz.

         Ms. Cruz testified that she and defendant returned to Mr. Hendricks' house later the same evening to do laundry. However, Mr. Hendricks did not want them at his house. Defendant ordered Ms. Cruz to return to, and remain in, the vehicle. Defendant went in Mr. Hendricks' house. Ms. Cruz heard a gunshot and defendant ran out of the house. When defendant returned to the car, he said, "Justin might be dead" and he mumbled "something about not leaving no evidence." Ms. Cruz stated that she was "hysterical" and started crying. Defendant pulled out a gun and hit her in the head with it, telling her that she "better not saying nothing" and that he would "kill" her little niece and her mother. She did not say anything more. The next night, she and defendant parked their vehicle on River Road near Mr. Hendricks' house. Defendant got out of the vehicle and retrieved three water jugs full of gasoline from the trunk. [16] When he returned to the vehicle, he no longer had the containers full of gasoline. Ms. Cruz subsequently learned that Mr. Hendricks was dead and that his house had been burned.

         Detective Goff established that Mr. Hendricks was killed sometime after he placed the 9-1-1 call at 1:22 A.M. on April 25, 2011, and before the fire became evident the next day, April 26, 2011, around 4:20 A.M. Detective Goff also established that after Mr. Hendricks placed the 9-1-1 call to report defendant beating Ms. Cruz, Mr. Hendricks called defendant at 2:07 A.M. The phone records showed that Mr. Hendricks' and defendant's phones both utilized a phone tower near Mr. Hendricks' house on April 25, 2011, at 2:07 A.M. Moreover, defendant admitted that he spoke with Mr. Hendricks at that time.[17]

         After defendant was arrested on April 29, 2011, Detective Goff interviewed him on three different occasions.[18] During the first interview, defendant denied knowing anything about Mr. Hendricks' murder. Detective Goff then played a portion of Mr. Hendricks' 9-1-1 call for defendant. Defendant accused Mr. Hendricks of lying and denied beating Ms. Cruz. In the second interview, [19]defendant stated that he and Ms. Cruz went to Mr. Hendricks' house on Easter but left by 6:00 P.M. After leaving Mr. Hendricks, they went to "Todd's" on Kenner Avenue to fix his car and he spent the night. Detective Goff confirmed Todd's identity, but Todd did not corroborate defendant's statement regarding his whereabouts. Months after his first two statements, Detective Goff spoke with defendant a third time, at his specific request.[20] In his third statement, defendant implicated Ms. Cruz in Mr. Hendricks' murder. Defendant stated that Ms. Cruz fought with Mr. Hendricks on Easter, that she returned to Mr. Hendricks' house later in the day and shot him. Defendant also stated that Ms. Cruz set Mr. Hendricks' house on fire after leaving him by the car. During the interview, defendant further admitted having a Glock during the time period in question and that he paid $150.00 for a second gun that Ms. Cruz possessed. He stated that the second gun was used by Ms. Cruz to murder Mr. Hendricks.[21]

         At trial, defendant explicitly denied shooting Mr. Hendricks, setting Mr. Hendricks' house on fire, and hitting Ms. Cruz with a gun. He also denied shooting a gun at Ms. Cruz while at Ms. Rhode's home, denied stabbing Ms. Cruz, and denied shooting Mr. Abumusa. Defendant admitted that he and Ms. Cruz had a fight at Mr. Hendricks house. He stated that he did not hit her with a lamp; the lamp "inadvertently hit her." He pushed her over the coffee table and she landed on the sofa with her hand hitting the lamp, which fell on her. However, in his statement he stated that he "pushed the lamp down on her and the lamp hit her in the top of the head, " and he "hit her with the lamp thing." Defendant conceded that he made Ms. Cruz bleed from the injuries he inflicted on her at Mr. Hendricks' house, but argued that he did not beat her with a dangerous weapon. He specifically denied hitting Ms. Cruz with a gun. Defendant further admitted that he and Ms. Cruz got into physical fights, but he stated that she hit him sometimes. Moreover, defendant admitted that he "choked her" and "smacked her, " but repeatedly denied that he "beat" Ms. Cruz. Defendant also testified that all of the State's witnesses were lying and that he was the only one being truthful.

         Defendant testified that he was asleep at Ms. Cruz's friend Amanda's house when Ms. Cruz called Amanda on the morning of April 25, 2011. Amanda woke him up and brought him to meet Ms. Cruz at Danny and Clyde's on Clearview Parkway at approximately 7:00 A.M. Defendant stated that he and Ms. Cruz rode around and talked. He specifically denied having possession of his cell phone at 4:34 A.M, 4:37 A.M, and 4:49 A.M., on April 25, 2011, when calls were placed from Kenner to Mr. Hendricks. Defendant testified that Ms. Cruz had his phone during those calls and shortly before Mr. Hendricks was murdered. However, defendant subsequently stated that after he and Ms. Cruz left Mr. Hendricks' house on Easter, they parked over by Pasadena Avenue in Metairie. While they were parked, his vehicle was approached by patrol officers because of potentially suspicious conduct because the vehicle was parked for a period of time. The police did not find anything after conducting a search of the vehicle and he was not taken into custody. He stated that later that night he went to Amanda's house, took some pills and went to sleep. He testified that it was his sister Amanda's house, not Amanda Glynn's house. His sister was the one who took him to Danny and Clyde's in the morning, not Ms. Glynn.

         During his testimony, defendant admitted that he possessed a firearm, a Glock, on April 24, 2011, and on April 25, 2011. He explicitly stated that he carried his firearm "every day, " even though he admitted to pleading guilty in January 2009, in case number 07-703, to possession of MDMA, possession with intent to distribute cocaine, and simple possession of marijuana. He stated that because the State admitted it did not have his firearm (the Glock) in its possession, he was not guilty of the two charges of possession of a firearm by a convicted felon on April 24, 2011, and April 25, 2011.

         Defendant further testified that Ms. Cruz shot Mr. Hendricks in self-defense. He testified that Ms. Cruz needed a "fix" and realized she left her purse at Mr. Hendricks house on Easter in the afternoon. When she retrieved her purse, she and Mr. Hendricks argued and she shot him in self-defense. Defendant stated he was not present at the time Mr. Hendricks was shot because he was visiting his grandfather at the hospital. Defendant also stated that he was not with Ms. Cruz went she set Mr. Hendricks' house on fire. Defendant admitted that he and Ms. Cruz discussed setting Mr. Hendricks' house on fire, i.e., he gave her advice about where to start the fire - "where the blood is, " but testified that it was not his idea. He testified that he "mistakenly" admitted in his third statement that it was his idea to set the fire.

         Discussion

         In his first counseled assignment of error, defendant contends that the trial court erred in denying his motion to sever counts two, three, and seven from the other four counts. He argues that counts one, four, five, and six relate to the same incident, while the other three counts relate to separate incidents. Defendant contends that count seven only served to portray him as a "bad guy" and Ms. Cruz as a victim. Defendant alleges that evidence of domestic abuse allegedly committed against Ms. Cruz by him hindered his defensive strategy because he claimed that Ms. Cruz shot Mr. Hendricks and set his house on fire.

         Defendant claims that the failure to sever the counts, especially count seven, 1) made the jury more hostile; 2) caused the jury to intertwine the evidence; 3) caused the jury to not hold the State to its burden of proof on all of the other counts charged; and 4) enabled the jury to infer a criminal disposition from the combined counts. Defendant concludes that he was extremely prejudiced by the joinder of offenses and that the jury's verdict cannot be considered unattributable to this error.

         The amended indictment charged defendant with the second degree murder of Justin Hendricks, alleged to have occurred on April 25, 2011 (count one); aggravated second degree battery of Cecilia Cruz Maize, alleged to have occurred on April 24, 2011 (count two); two counts of possession of a firearm by a convicted felon, alleged to have occurred on April 24, 2011, and April 25, 2011, respectively (counts three and five); intimidation of a witness, namely Cecilia Cruz Maize, alleged to have occurred on April 25, 2011 (count four); aggravated arson of Mr. Hendricks' residence, alleged to have occurred on April 26, 2011 (count six); and aggravated assault with a firearm of Cecilia Cruz Maize, alleged to have occurred in April 2011 (count seven).

         Prior to trial, defendant filed a motion to sever the offenses pursuant to La. C.Cr.P. art. 495.1, specifically to sever the counts involving Mr. Hendricks as the victim, from the counts involving Ms. Cruz as the victim.[22] He argued that the charges involving Mr. Hendricks are separate and distinct from the charges involving Ms. Cruz and that the joinder of these offenses would only confuse and prejudice the jury against defendant. The prejudice to defendant would overshadow any consideration of judicial economy. The trial court denied defendant's motion, finding that it was "an appropriate joinder of all of the counts, " and if there were any issues concerning a prejudicial effect, it would "handle those issues in instruction to the Jury."

         La. C.Cr.P. art. 493 permits the joinder of offenses if the offenses charged "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan, " and the offenses are triable by the same mode of trial.

         Felony offenses not triable by the same mode of trial may still be joined in the same bill of information under the conditions specified in La. C.Cr.P. art. 493.2, which provides:

Notwithstanding the provisions of Article 493, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

         While we note that count seven may have been improperly joined in the indictment because it was not based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan as were the remaining counts, this issue was not preserved for appeal. A misjoinder of offenses can only be urged by a motion to quash the indictment. La. C.Cr.P. art. 495. Defendant did not file a motion to quash the indictment on the basis of misjoinder of offenses. Where a defendant fails to file a motion to quash the indictment or information, the defendant is deemed to have waived any objection to the misjoinder of offenses. State v. Mallett, 357 So.2d 1105 (La. 1978), cert. denied, 439 U.S. 1074, 99 S.C. 848, 59 L.Ed.2d 41 (1979);[23]State v. Robinson, 11-12 (La.App. 5 Cir. 12/29/11), 87 So.3d 881, 910; State v. Favors, 09-413 (La.App. 5 Cir. 11/10/09), 28 So.3d 433, 441. Thus, because defendant failed to file a motion to quash the ...


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