FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 515-369,
SECTION "C" HONORABLE BENEDICT J. WILLARD, JUDGE
A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH DONNA
ANDRIEU ASSISTANT DISTRICT ATTORNEY SCOTT VINCENT ASSISTANT
HOLLIHERRLE-CASTILLO LOUISIANA APPELLATE PROJECT Counsel for
composed of Chief Judge James F. McKay III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins
F. MCKAY III CHIEF JUDGE.
defendant appeals the trial court's rulings denying his
motion for mistrial based on the late disclosure of
BradyMaterial and also asserting that he was not
Mirandized prior to the taking of DNA samples. For
the reasons that follow, we affirm the defendant's
conviction and sentence.
March 19, 2013, the defendant was charged by bill of
information with one count of attempted second degree murder,
in violation of La. R.S. l4:(27)3O.l, and one count of
attempted armed robbery while armed with a firearm, in
violation of La. R.S. l4:(27)64.3. The defendant appeared for
arraignment on March 22, 2013, and entered a plea of not
guilty. On April 1, 2013, an omnibus motion for discovery;
motion to preserve evidence; motion for suppression of
statement, evidence and identifications; and motion for
preliminary examination were filed. The hearing on the
motions was continued multiple times. On May 16, 2014, the
defendant obtained new counsel. On May 23, 2014, the
defendant's new counsel filed a second motion to suppress
evidence, suppress statement, and suppress identification.
The defendant also requested a preliminary examination.
Additional motions for continuances were filed and granted.
The trial court conducted a hearing on the motions on
February 5, 2015. The trial court found probable cause and
denied the defendant's motion to suppress evidence and
statement. The defendant was given until February 20, 2015,
to file a motion to reconsider the trial court ruling on the
motion to suppress the evidence. A pre-trial conference was
set for February 20, 2015, and trial was set for April 28,
2015. The defendant was granted an extension of time to file
his brief, and the pre-trial conference was continued to
March 27, 2015. The pre-trial conference was continued once
more and set for April 2, 2015. The defendant filed his
motion to reconsider the trial court ruling denying his
motion to suppress the evidence on April 6, 2015. After a
review of the defendant's motion to reconsider its ruling
on the motion to suppress the evidence on March 27, 2015, the
trial court determined that the ruling from February 5, 2015,
would stand. The defendant sought supervisory review in this
Court, which was denied on August 4, 2015. State v.
Cooper, 2015-0570 (La.App. 4 Cir. 8/4/15)
(unpub.). The Louisiana Supreme Court denied writs
on October 30, 2015. State v. Cooper, 2015-1637 (La.
10/30/15), 180 So.3d 299.
March 26, 2016, a trial by jury commenced. At the conclusion
of the four-day trial, the jury returned guilty verdicts on
all charges. On April 19, 2016, the defense filed motions for
new trial, for arrest of judgment, and for mistrial, which
the trial court denied. On April 20, 2016, the trial court
imposed a sentence of twenty-five years without benefit of
parole, probation, or suspension of sentence for the
attempted armed robbery conviction and a concurrent
forty-year sentence, without benefits, for the attempted
second degree murder conviction. That same day, the defense
filed an oral motion to reconsider the sentence, which was
denied. On April 27, 2016, the defendant filed a motion for
appeal which was granted.
October 19, 2012, Mark Wright was shot during an attempted
armed robbery in the parking lot of his hotel, the Family
Inn, at 6303 Chef Menteur in New Orleans, Louisiana. Mr.
Wright had just opened the door to his car when a man pointed
a gun at him and demanded money. Mr. Wright was holding a
backpack with a gun inside. As the robber grabbed the
backpack, Mr. Wright managed to hold on to his gun. The
robber shot Mr. Wright twice, once in the arm and once in the
side. Mr. Wright shot back twice and believed he injured the
Wright exited the truck, doubled over, and moved towards the
rear of his vehicle, when he saw the robber sitting behind
the vehicle with his legs stretched out in front of him. Mr.
Wright described the robber as a black male, thin, with
matted down hair. Mr. Wright turned around to avoid the
robber and made his way to the front of his vehicle. Mr.
Wright fired two more shots in the direction of the robber.
firing the two shots, Mr. Wright was shot again, this time in
his back, leaving him paralyzed. The New Orleans Polic
Department ("NOPD") and Emergency Medical Services
("EMS") arrived on the scene and after stabilizing
Mr. Wright, transported him to the hospital.
of his investigation, the lead detective on the case,
Sergeant Gregory Powell ("Sgt. Powell"), advised
dispatch to notify him if anyone was admitted with a gunshot
wound to any of the area hospitals. He was soon notified by
Tulane Medical Center that a gunshot victim, Iren Cooper, had
just arrived at the hospital.
scene unit was dispatched to the hospital and performed a
gunshot residue test. At the motion hearing, Sgt. Powell
testified that Mr. Cooper consented to the test; however, at
trial, Sgt. Powell acknowledged that the crime scene unit had
arrived at the hospital, performed the test, and left before
he arrived. No testimony was provided as to the voluntariness
of the consent by the officer who actually performed the
gunshot residue test.
crime lab photographed the scene at the Family Inn, and a hat
with the STD trash company emblem was retrieved. Based upon
911 calls, two detectives followed the trail the robber
allegedly took when he fled. The detectives discovered blood
drops eight houses down the street, which were retrieved by
the crime lab.
Powell interviewed the defendant at the hospital. Sgt. Powell
did not consider the defendant a suspect in Mr. Wright's
case in particular. He testified that anyone who went to a
hospital that night with a gunshot wound would be
investigated as a possible suspect, and his treatment of the
defendant was the same as his treatment of any other gunshot
victim reporting to a hospital that night. A buccal swab was
obtained from the defendant, and the defendant's hands
were tested for gunshot residue.
Wright was shown a photo lineup, which included the defendant
at University hospital. He chose another individual from the
lineup, stating the photo selected looked the most like the
buccal swab and the blood samples recovered near the scene
were sent to the State Police Crime Lab for testing. DNA
analyst Julia Nailor-Kirk testified that the defendant could
not be excluded as the donor of the DNA profile obtained from
the blood. The hat recovered near the back of Mr.
Wright's vehicle was also sent to be tested for DNA. Ms.
Nailor-Kirk testified that the defendant could also not be
excluded as the donor of the DNA profile obtained from inside
the hat. She also testified that the statistical probability
of finding an unrelated random individual among the black
population with the same profile was one in 23 quintillion
for the blood and one in 561 million for the hat.