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State v. Cooper

Court of Appeals of Louisiana, Fourth Circuit

July 5, 2017





          Court composed of Chief Judge James F. McKay III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins


         The defendant appeals the trial court's rulings denying his motion for mistrial based on the late disclosure of Brady[1]Material and also asserting that he was not Mirandized[2] prior to the taking of DNA samples. For the reasons that follow, we affirm the defendant's conviction and sentence.


         On 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.

         On 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.


         On 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 defendant.

         Mr. 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.

         After 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.

         As part 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.

         A crime 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.

         The 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.

         Sgt. 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.

         Mr. 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 perpetrator.

         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.

         ERRORS ...

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