OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH
case involves a trial court's grant of a motion for new
trial on the basis that the verdict was contrary to the law
and the evidence pursuant to Louisiana Code of Criminal
Procedure article 851(1). A jury convicted the defendant of
second degree murder and armed robbery. The defendant filed a
motion for new trial, which focused on inconsistencies in the
evidence presented to the jury, arguing that the testimony of
the one eyewitness contained internal inconsistencies and was
at least partially irreconcilable with the physical evidence.
The trial court granted the motion, ordering a new trial for
the defendant. The appellate court reversed. For the reasons
that follow, we reverse the appellate court and reinstate the
trial court ruling.
AND PROCEDURAL HISTORY
following narrative was presented at trial. The body of
Javier Sanchez was found on November 2, 2007 in Orleans
Parish near the old Jazzland Theme Park. He had been shot in
the abdomen at close range. Earlier that evening, Maria
Abreu, Mr. Sanchez's girlfriend with whom he shared an
apartment on Clearview Parkway in Metairie, answered a knock
at the door. Three armed men forced their way into the
apartment looking for Mr. Sanchez and "two kilos."
Ms. Abreu does not speak English well and could not
understand exactly what the men wanted. She gave them about
$8, 000 from a briefcase in the house. The assailants bound
her hands and feet with duct tape and then used the tape to
tie her to the bedposts of a bed on the second floor of the
apartment. Ms. Abreu's cell phone was taken. The
assailants continued to ransack the home.
Sanchez returned from his errands carrying a drink and a bag
containing food. He yelled to Ms. Abreu when he entered that
she should have answered her phone. Ms. Abreu heard some
items fall (later determined to be the food and drink) and
heard the men leave. She then went to the window in the
second-floor bedroom and saw Mr. Sanchez's Ford
Expedition drive away. She saw one person sitting in the
driver's seat. Mr. Sanchez was sitting in the middle of
the back seat with one person on either side of him. The
parking lot of the apartment complex was dark, but Ms. Abreu
said she could see into the Expedition because an interior
light was on.
Sanchez's vehicle was found in New Orleans East on
November 8, 2007. The car was found under a covered carport
adjacent to a residence. The car's interior was burned
and the steering column was damaged.
trial, the parties stipulated that a latent fingerprint
lifted from the adhesive side of a roll of duct tape
recovered from the living room at the apartment matched
Calvin King's right index finger. The state's only
eyewitness to any of the events of November 2, 2007 was Ms.
Abreu. Also at trial, the defense called an investigator who
testified that based on a reconstruction of the scene, Ms.
Abreu could not have seen what she claimed she witnessed
based on where the Expedition would have been parked, the
distance, angle and lighting conditions as well as an apron
on the window that blocked the view from the apartment. Other
inconsistencies brought to light were whether Ms. Abreu
previously told police that the men came knocking on the door
twice; whether Ms. Abreu had previously told law enforcement
that she knew Mr. Sanchez was selling cocaine; whether Ms.
Abreu's mouth had been duct taped; and whether Ms. Abreu
had reported to police that she had been pistol whipped.
returned verdicts of guilty of second degree murder (La. R.S.
14:30.1) and guilty of armed robbery (La. R.S. 14:64.3) on
February 1, 2013. The defendant filed a Motion for New Trial,
which was based on Louisiana Code Criminal Procedure articles
851(1) and 851(2).
a hearing, the trial court granted the motion and gave the
following reasons from the bench:
Through all the motions that we heard in this case and the
trial itself, I've had a lot of problems with the
testimony of Maria Abreu because of so many inconsistencies
that she's had in her testimony. And this is strictly a
circumstantial case against Mr. King. There were no witnesses
who testified that he committed the murder or he did the
robbery other than Maria Abreu, who was not a witness to the
murder, just to the events that took place in the apartment.
I'm going to grant your motion for new trial.
state took a writ to the court of appeal, which reversed the
trial court in a split decision. The Fifth Circuit held that
the trial court legally erred when it failed to
"adequately state whether it made the required threshold
finding that the defendant suffered an injustice."
State v. King, 15-39, p. 2 (La.App. 5 Cir. 5/13/15).
The Fifth Circuit also stated that even if the trial court
did determine the defendant suffered an injustice, the trial
court abused its discretion because the inconsistencies in
Ms. Abreu's testimony were "insignificant and did
not bear on the elements of the crimes the State charged the
defendant with committing." Id. at p. 3.
court granted the defendant's writ application. State
v. King, 15-1283 (La. 5/20/16), 191 So.3d 1060.
grounds for a motion for new trial are found in Louisiana
Code of Criminal Procedure Article 851, which provided
at the time the defendant filed his motion:
The motion for a new trial is based on the supposition that
injustice has been done the defendant, and, unless such is
shown to have been the case the motion shall be denied, no
matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new