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
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.
DEFENDANT/APPELLANT, Jacoby A. Maize In Proper Person
composed of Susan M. Chehardy, Fredericka Homberg Wicker, and
Stephen J. Windhorst
STEPHEN J. WINDHORST JUDGE
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).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.
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. 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.
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
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,  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.
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 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. 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.
Garcia also testified that Mr. Hendricks had two sharp-force
injuries to the ventral surface of his left forearm near his
wrist. 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.
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) and struck her
with a gun. Defendant and Ms. Cruz, subsequently left in a
black Land Rover.
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
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.
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. He used his hands and objects when he
beat her. She recalled a specific occasion while she and
defendant were living with Amanda Glynn. Defendant
stabbed her with a knife, resulting in a hospital
visit. She also recalled an incident at Joan
Rhode's 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.
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
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. 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.
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'
Romano, a friend of Mr. Hendricks, spoke with Mr. Hendricks
twice over the phone on Easter, April 24, 2011, in the
evening. 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.
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.  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.
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.
defendant was arrested on April 29, 2011, Detective Goff
interviewed him on three different occasions. 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, 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. 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.
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.
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.
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.
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
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.
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.
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).
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. 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
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.
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.
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);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 ...